LaBua v. William Floyd Union Free School District

—In an action, inter alia, to recover damages for battery and the intentional infliction of emotional distress, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated March 31, 1999, as conditionally granted its cross motion to dismiss the action in the event that the plaintiff Denise LaBua failed to serve and file an affidavit of merit. Ordered that the appeal is dismissed, with costs. The order appealed from was superseded by a subsequent order dated July 15, 1999, which, based upon an affidavit of merit submitted by the plaintiff Denise LaBua, denied the defendant’s cross motion with leave to renew upon the completion of [450] discovery. Accordingly, the instant appeal is dismissed (see, Matter of Elishaba A., 269 AD2d 392; Lewis v Fidelio, 266 AD2d 357; Matter of W. Children, 256 AD2d 412). Ritter, J. P., Joy, Goldstein and H. Miller, JJ., concur.