Opinion
518925.
04-09-2015
Veya GIANNUZZI, Appellant, v. Eric KEARNEY, Respondent.
Carman M. Garufi, Binghamton, for appellant.
Carman M. Garufi, Binghamton, for appellant.
Before: , GARRY, LYNCH and DEVINE, JJ.
Opinion
LAHTINEN, J.P.Appeal from an order of the Supreme Court (Smith, J.), entered April 25, 2014 in Broome County, which, among other things, granted defendant's motion for an award of temporary maintenance.
In April 2014, Supreme Court (Smith, J.) directed plaintiff to pay pendente lite maintenance to defendant of $3,500 per month. The current appeal is from such order. However, while the appeal was pending, Supreme Court (Reynolds Fitzgerald, J.), replaced the April 2014 order with an order in December 2014 directing plaintiff to pay pendente lite maintenance of $500 per month. Inasmuch as the relevant part of the order on appeal has been replaced by the December 2014 order, the current appeal from the April 2014 order is now moot (see e. g. Matter of Lauren L. [Cassi M.], 79 A.D.3d 1172, 1172, 911 N.Y.S.2d 678 [2010] ; Hayes v. Hayes, 32 A.D.3d 1159, 1159–1160, 820 N.Y.S.2d 825 [2006] ; Batson v. Batson, 277 A.D.2d 750, 751, 716 N.Y.S.2d 137 [2000] ). Plaintiff's contention that the amount awarded in the April 2014 order was excessive can be asserted at trial and, if meritorious, may be “considered in appropriately adjusting the equitable distribution award” (Fox v. Fox, 306 A.D.2d 583, 584, 759 N.Y.S.2d 702 [2003], appeal dismissed 1 N.Y.3d 622, 777 N.Y.S.2d 21, 808 N.E.2d 1280 [2004] ; see Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 [2009] ).
ORDERED that the appeal is dismissed, as moot, without costs.
GARRY, LYNCH and DEVINE, JJ., concur.