Nassau Trust Co. v. Filderman

Motion by defendant inter alia to dismiss the appeal of plaintiff from an order of the Supreme Court, Suffolk County, dated July 22, 1975. Motion granted to the extent that the appeal is dismissed, with $40 costs. The only issue raised on the appeal is whether plaintiff’s service of the summons and complaint was properly held to have been defective. Subsequent to the service and filing of the notice of appeal herein, plaintiff served defendant with a second summons and complaint seeking the identical relief sought in the case at bar. Plaintiff’s second action was terminated by the grant of summary judgment to it by an order of the Supreme Court, Suffolk County, entered January 9, 1976, upon a decision dated December 30, 1975. In view of these developments, the question of jurisdiction over defendant, which is the only issue raised on the appeal, has now become academic. Where no controversy remains with respect to the order appealed from, the appeal should be dismissed as moot (Roche v Lamb, 33 AD2d 1102; Miglietta vKennecott Copper Corp., 22 AD2d 874). In light of the circumstances above set forth, costs have been awarded to defendant. Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Shapiro, JJ., concur.