From Casetext: Smarter Legal Research

Klam v. Klam

Appellate Division of the Supreme Court of New York, Second Department
May 12, 1997
239 A.D.2d 390 (N.Y. App. Div. 1997)

Opinion

May 12, 1997

Appeal from the Supreme Court, Suffolk County (Lifson, J.).


Ordered that the appeal is dismissed as academic, with costs to the defendant.

The record demonstrates that at the close of the plaintiff's case, the defendant moved for judgment as a matter of law dismissing the complaint, and the plaintiff cross-moved for the same relief. The trial court denied the plaintiff's cross motion, and granted the defendant's motion to dismiss the complaint on the grounds that (1) the plaintiff's proof failed to make out the elements of a constructive trust by clear and convincing evidence, and (2) the plaintiff failed to comply with a prior order of the court directing him to post an undertaking, thereby warranting the dismissal of the action. On appeal, the plaintiff takes issue only with the court's determination that he failed to establish the elements of a constructive trust. He does not challenge the Supreme Court's dismissal of his action for his failure to post the undertaking.

It is well settled that "[t]he mootness doctrine enjoins appellate review of academic questions" (Matter of General Bldg Contrs. v. Egan, 106 A.D.2d 688, 690). Here, the plaintiff's appeal is academic, inasmuch as he seeks review of only one of the bases upon which the trial court dismissed his complaint. Hence, even if we were to find his contention persuasive, an independent alternative ground for the dismissal exists which the plaintiff has not challenged, and thus would remain unaffected by any determination on this appeal. Accordingly, appellate review of this matter would neither alter the result nor directly affect a substantial right or interest of any party to this appeal (see, e.g, Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707; Barrett Foods Corp. v. New York City Bd. of Educ., 144 A.D.2d 410), and we therefore dismiss this appeal as academic (see, Habe v. Triola, 154 A.D.2d 437; SOS Oil Corp. v. Norstar Bank, 152 A.D.2d 223, 228, affd 76 N.Y.2d 561).

Rosenblatt, J.P., Ritter, Thompson and Sullivan, JJ., concur.


Summaries of

Klam v. Klam

Appellate Division of the Supreme Court of New York, Second Department
May 12, 1997
239 A.D.2d 390 (N.Y. App. Div. 1997)
Case details for

Klam v. Klam

Case Details

Full title:KLAUS KLAM, Appellant, v. RENATE KLAM, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 12, 1997

Citations

239 A.D.2d 390 (N.Y. App. Div. 1997)
658 N.Y.S.2d 35

Citing Cases

Schapiro v. Schmuckler

The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or…

Noheme P. v. Admin. for Children's Servs. (In re Daniel P.)

Notably, the mother does not argue the events of those dates were inadequate to support a finding of neglect…