Clean Stores, Inc. v. Pryor, McClendon, Counts & Co.

The appellant commenced a proceeding under Index Number 14366/99 to confirm an arbitration award. It later commenced a second proceeding, which is the subject of this appeal, to confirm the same arbitration award. In the order appealed from, the Supreme Court dismissed the second petition on the ground that the appellant failed to comply with the requirements of CPLR 7510. After this appeal was taken from that order, the Supreme Court granted the appellant’s petition to confirm the arbitration award in the first proceeding. Once the appellant obtained the relief it sought in the first proceeding, its challenge to the court’s dismissal of the second proceeding became academic (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713; see Douglas Smith Fabrication & Repair v Gasthaus, 259 AD2d 515; Matter of Orange County Legislature v McPhillips, 206 AD2d 373). Moreover, the matter does not warrant the invocation of an exception to the mootness doctrine (see Matter of Hearst Corp. v Clyne, supra at 707). Accordingly, the appeal is dismissed. Since the appellant obtained the full relief it sought prior to the submission of this appeal, it appears that the continuation of the appeal may have been frivolous within the meaning of 22 NYCRR 130-1.1 (c) (see Baghaloo-White v Allstate Ins. Co., 270 AD2d 296; Italian Am. Civic Assn. of Mineola v Cataldo, 256 AD2d 552). Accordingly, affirmations or affidavits shall be submitted on the issue of whether the continuation of the appeal is frivolous and, if so, what amount is appropriate as a penalty (see McMurray v McMurray, 163 AD2d 280). Santucci, J.P., Smith, Krausman, H. Miller and Adams, JJ., concur.