Opinion
No. 2021-809 K C
07-01-2022
Bryan Espinoza, Appellant, v. Mark Suzman (Gates Foundation), Respondent.
Bryan Espinoza, appellant pro se. K & L Gates, LLP (Joanna A. Diakos of counsel), for respondent.
Unpublished Opinion
Bryan Espinoza, appellant pro se. K & L Gates, LLP (Joanna A. Diakos of counsel), for respondent.
PRESENT:: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), entered October 25, 2021. The order granted defendant's motion to dismiss the complaint.
ORDERED that the appeal is dismissed as moot.
The summons with endorsed complaint in this action states that plaintiff is seeking to recover the total principal sum of $95,600 for "Personal Injuries," "Failure to provide proper services," "Loss of time for work," "Dishonored Check," and "Monies Due." Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) and (8). By order entered October 25, 2021, the Civil Court (Nicholas W. Moyne, J.) granted defendant's motion finding that "[p]laintiff did not serve the defendant pursuant to the CPLR." On November 4, 2021, plaintiff filed a second action against defendant in the Civil Court (index No. CV-026562-21/KI), in which the endorsed complaint set forth the same five claims as the endorsed complaint in the instant action. Defendant accepted service of the second summons with endorsed complaint. Plaintiff then filed a notice of appeal from the October 25, 2021 order on November 5, 2021.
A court "may take judicial notice of undisputed court records and files" (Matter of Khatibi v Weill, 8 A.D.3d 485, 485 [2004]; see Matter of Allen v Strough, 301 A.D.2d 11, 18 [2002]; Ptasznik v Schultz, 247 A.D.2d 197 [1998]). By instituting the second action, of which we take judicial notice, plaintiff effectively abandoned the instant action, thereby mooting the appeal from the Civil Court's October 25, 2021 order (see Jarmuth v Wagner, 190 A.D.3d 527 [2021]; Matter of Allstate Ins. Co. v Torrales, 186 A.D.2d 649 [1992]; Sherrill v Grayco Bldrs., 99 A.D.2d 965, 966-967 [1984], affd 64 N.Y.2d 261 [1985]).
Accordingly, the appeal is dismissed as moot.
WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.