Opinion
12428 Index No. 653609/18 Case No. 2020-00661
11-19-2020
David LEHMANN et al., Plaintiffs–Appellants, v. EDM LENOX, LLC, et al., Defendants–Respondents.
The Law Office of N. Ari Weisbrot LLC, New York (Nathaniel Ari Weisbrot of counsel), for appellants. Brief Carmen & Kleiman, LLP, New York (Richard E. Carmen of counsel), for respondents.
The Law Office of N. Ari Weisbrot LLC, New York (Nathaniel Ari Weisbrot of counsel), for appellants.
Brief Carmen & Kleiman, LLP, New York (Richard E. Carmen of counsel), for respondents.
Gische, J.P., Mazzarelli, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered January 9, 2020, which, to the extent appealed from and appealable, granted defendant EDM Lenox's cross motion for an order cancelling a notice of pendency, unanimously affirmed, and the appeal from the portions of the order which, inter alia, granted defendant's motion for summary judgment dismissing plaintiff's breach of contract claim and for certain declaratory relief, unanimously dismissed, without costs, as moot.
In this action concerning defendant seller's right to retain plaintiff's down payment for the purchase of an apartment, plaintiff filed a notice of pendency. Here, where plaintiffs seek to recover the down payment, and not to possess the property, the lis pendens was improper and the court properly canceled it ( Rose v. Montt Assets, 250 A.D.2d 451, 452, 673 N.Y.S.2d 406 [1st Dept. 1998] ); see also Hoffmann Invs. Corp. v. Yuval, 33 A.D.3d 511, 512, 823 N.Y.S.2d 51 [1st Dept. 2006] ). The court takes notice of a subsequent amended order of the Supreme Court, dated October 13, 2020, which has been submitted to the Court by defendants without objection. In the amended order, the motion court granted in part plaintiffs' motion for reargument on procedural grounds raised sua sponte by the court. Since the amended order supercedes the January 2020 order from which plaintiffs appeal and affords them all the relief they seek on appeal, other than reinstatement of the notice of pendency, the remainder of the appeal has been rendered moot and must be dismissed (see Rolando A.G. v. Marisol R.M., 172 A.D.3d 631, 99 N.Y.S.3d 612 [1st Dept. 2019] ; Deering v. State, 111 A.D.3d 1368, 974 N.Y.S.2d 850 [4th Dept. 2013] ; Matter of Dye v. Bernier, 104 A.D.3d 1102, 961 N.Y.S.2d 814 [3d Dept. 2013] ; CPLR 5511, 5517 ).