Opinion
88 CA 18–01657
02-08-2019
Jose M. BERMUDEZ, Jr., Plaintiff–Respondent, v. Aaron J. PEUSER and Marie T. Entwistle, Defendants–Appellants.
LAW OFFICES OF JOHN TROP, DEWITT (THERESA M. ZEHE OF COUNSEL), FOR DEFENDANTS–APPELLANTS. LAW OFFICES OF MARC JONAS, UTICA (MARC JONAS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
LAW OFFICES OF JOHN TROP, DEWITT (THERESA M. ZEHE OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
LAW OFFICES OF MARC JONAS, UTICA (MARC JONAS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: Defendants appeal from an order that, in effect, directed disclosure of a nonparty's written statement. An appeal from a discovery order is rendered moot, however, when the disputed material is disclosed before the appeal is decided (see Vandashield Ltd v. Isaacson, 146 A.D.3d 552, 555, 46 N.Y.S.3d 18 [1st Dept. 2017] ; Khoury v. Chouchani, 27 A.D.3d 1071, 1073, 811 N.Y.S.2d 257 [4th Dept. 2006] ; Matter of Franklin [International Bus. Machs. Corp.], 215 A.D.2d 759, 759, 627 N.Y.S.2d 963 [2d Dept. 1995] ; cf. Matter of Camara v. Skanska, Inc., 150 A.D.3d 548, 549, 55 N.Y.S.3d 27 [1st Dept. 2017] ; but see Matter of New York City Asbestos Litig., 109 A.D.3d 7, 12 n. 2, 966 N.Y.S.2d 420 [1st Dept. 2013], lv dismissed 22 N.Y.3d 1016, 981 N.Y.S.2d 347, 4 N.E.3d 357 [2013] ). Here, defendants disclosed the disputed statement during the pendency of this appeal. We therefore dismiss the appeal as moot (see Vandashield Ltd, 146 A.D.3d at 553, 46 N.Y.S.3d 18 ; Khoury, 27 A.D.3d at 1072, 811 N.Y.S.2d 257 ; Franklin, 215 A.D.2d at 759, 627 N.Y.S.2d 963 ).