Opinion
2000-10197
Submitted May 29, 2002.
September 18, 2002.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the petitioner appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated September 20, 2000, which denied the petition and dismissed the proceeding.
Riconda Garnett, LLP, Valley Stream, N.Y. (John Riconda of counsel), for appellant.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, HOWARD MILLER, THOMAS A. ADAMS, JJ.
ORDERED that the appeal is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the appellant and its counsel are directed to show cause why an order should or should not be made and entered imposing such sanctions and/or costs, if any, against them pursuant to 22 NYCRR 130-1.1(c), as this court may deem appropriate, by each filing an affirmation or affidavit on that issue in the office of the Clerk of this court and serving one copy of the same on each other on or before October 16, 2002; and it is further,
ORDERED that the Clerk of this court, or his designee, is directed to serve counsel for the respective parties with a copy of this decision and order.
The appellant commenced a proceeding under Index Number 14366/99 to confirm an arbitration award. It later commenced a second proceeding, which is the subject of this appeal, to confirm the same arbitration award. In the order appealed from, the Supreme Court dismissed the second petition on the ground that the appellant failed to comply with the requirements of CPLR 7510. After this appeal was taken from that order, the Supreme Court granted the appellant's petition to confirm the arbitration award in the first proceeding. Once the appellant obtained the relief it sought in the first proceeding, its challenge to the court's dismissal of the second proceeding became academic (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713; see Douglas Smith Fabrication and Repair v. Gasthaus, 259 A.D.2d 515; Matter of Orange County Legislature v. McPhillips, 206 A.D.2d 373). Moreover, the matter does not warrant the invocation of an exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne, supra at 707). Accordingly, the appeal is dismissed.
Since the appellant obtained the full relief it sought prior to the submission of this appeal, it appears that the continuation of the appeal may have been frivolous within the meaning of 22 NYCRR 130-1.1 (c) (see Baghaloo-White v. Allstate Ins. Co., 270 A.D.2d 296; Italian Amer. Civic Assn. of Mineola, N.Y. v. Cataldo, 256 A.D.2d 552). Accordingly, affirmations or affidavits shall be submitted on the issue of whether the continuation of the appeal is frivolous and, if so, what amount is appropriate as a penalty (see McMurray v. McMurray, 163 A.D.2d 280).
SANTUCCI, J.P., SMITH, KRAUSMAN, H. MILLER and ADAMS, JJ., concur.