Opinion
No. 214 CA 22-01315
04-28-2023
LIBERTY MAINTENANCE, INC., PLAINTIFF-RESPONDENT, v. ALLIANT INSURANCE SERVICES, INC., DEFENDANT-APPELLANT.
GORDON REES SCULLY MANSHUKHANI, LLP, NEW YORK CITY (DON WILLENBURG, OF THE CALIFORNIA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR DEFENDANT-APPELLANT. KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
GORDON REES SCULLY MANSHUKHANI, LLP, NEW YORK CITY (DON WILLENBURG, OF THE CALIFORNIA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR DEFENDANT-APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.
Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered August 9, 2022. The order, among other things, granted in part plaintiff's cross-motion for leave to amend the amended complaint and denied defendant's motion to dismiss the amended complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for, inter alia, defendant's alleged breach of its brokerage services agreement with plaintiff. Defendant thereafter moved to dismiss the amended complaint, and plaintiff cross-moved for leave to file a second amended complaint. Defendant appeals from an order that granted plaintiff's cross-motion in part and denied defendant's motion as moot.
In its order, Supreme Court wrote that its determination to grant plaintiff's cross-motion in part "obviate[d] consideration of [d]efendant's application to dismiss the [a]mended [c]omplaint." Additionally, the relevant ordering paragraph stated that defendant's motion was "denied, as moot." Thus, the court's denial of defendant's motion was based solely on the ground of mootness. Although defendant contends that the court erred in denying its motion, it does not challenge the determination that the motion is moot. Having failed to present any argument with respect to the dispositive determination in the order appealed from, defendant is deemed to have abandoned any contention with respect to the propriety thereof (see Jones v Town of Carroll, 197 A.D.3d 1003, 1003 [4th Dept 2021]; see also Papaj v County of Erie, 211 A.D.3d 1617, 1618 [4th Dept 2022]; Buczek v Town of Evans, 210 A.D.3d 1428, 1428 [4th Dept 2022], appeal dismissed 39 N.Y.3d 1090 [2023]), and we therefore affirm (see Jones, 197 A.D.3d at 1004).