Finnegan v. New York Central Mutual Fire Insurance

Appeal from an order of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered January 22, 2004. The order denied defendant’s motion for partial summary judgment dismissing any claim for consequential damages on the condition that plaintiff move for leave to amend the amended complaint. It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs. Memorandum: Defendant appeals from an order denying its motion for partial summary judgment dismissing any claim in the amended complaint that plaintiff might have for consequential damages on the condition that plaintiff “move for leave to amend his [amended] complaint” to allege a claim for consequential damages. Although the second amended complaint is not included in the record on appeal, it is undisputed that Supreme Court granted plaintiffs subsequent motion for leave to serve a second amended complaint asserting a claim for consequential damages. We therefore conclude that the issues involving the first amended complaint are moot and thus the appeal must be dismissed (see Chalasani v Neuman, 64 NY2d 879, 880 [1985]; Sutton Inv. Corp. v City of Syracuse, 12 AD3d 1201 [2004]). Present—Green, J.E, Scudder, Gorski, Pine and Lawton, JJ.