Opinion
2016–08527 Index No. 16793/14
12-06-2017
Joseph MIZRAHI, respondent, v. U.S. BANK, NATIONAL ASSOCIATION, etc., appellant, et al., defendants.
Hogan Lovells US, LLP, New York, N.Y. (Christian Fletcher of counsel), for appellant. Wenig Saltiel, LLP, Brooklyn, N.Y. (Meryl L. Wenig and Jason M. Fink of counsel), for respondent.
Hogan Lovells US, LLP, New York, N.Y. (Christian Fletcher of counsel), for appellant.
Wenig Saltiel, LLP, Brooklyn, N.Y. (Meryl L. Wenig and Jason M. Fink of counsel), for respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action pursuant to RPAPL 1501(4) to cancel and discharge a mortgage, the defendant U.S. Bank, National Association, appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 13, 2016, which, inter alia, in effect, granted that branch of the plaintiff's motion which was for summary judgment on the complaint.
ORDERED that the appeal is dismissed as academic, without costs or disbursements, and the provision of the order which, in effect, granted the plaintiff's motion for summary judgment and the first through fifth decretal paragraphs thereof are vacated.
In light of our determination on a related appeal granting that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it (see Mizrahi v. U.S. Bank, National Association, 156 A.D.3d 617, 64 N.Y.S.3d 572, 2017 WL 6029651 [Appellate Division Docket No. 2015–08105; decided herewith] ), the instant appeal has been rendered academic.
While it is the general policy of New York courts to simply dismiss an appeal which has been rendered academic, vacatur of an order or judgment on appeal may be an appropriate exercise of discretion where necessary "in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent" (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 718, 431 N.Y.S.2d 400, 409 N.E.2d 876 ; see Matter of Adirondack Moose Riv. Comm. v. Board of Black Riv. Regulating Dist., 301 N.Y. 219, 223, 93 N.E.2d 647; E–Z Eating 41 Corp. v. H.E. Newport L.L.C., 84 A.D.3d 401, 401–402, 922 N.Y.S.2d 329 ; Funderburke v. New York State Dept. of Civ. Serv., 49 A.D.3d 809, 811, 854 N.Y.S.2d 466 ; see also United States v. Munsingwear, Inc., 340 U.S. 36, 40–41, 71 S.Ct. 104, 95 L.Ed. 36 ). Under the particular circumstances of this case, we deem it appropriate to vacate the provisions of the order appealed from (see Mannino v. Wells Fargo Home Mtge., Inc., 120 A.D.3d 638, 639, 990 N.Y.S.2d 854 ).
DILLON, J.P., SGROI, HINDS–RADIX and IANNACCI, JJ., concur.