Opinion
2003-02757.
Decided May 10, 2004.
In an action, inter alia, to foreclose a mortgage, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Barone, J.), dated July 20, 2000, as granted the cross motion of the defendant Federal National Mortgage Association for summary judgment dismissing the first cause action insofar as asserted against it.
Bosworth, Gray Fuller, Bronxville, N.Y. (David Otis Fuller, Jr., and Charles Rudd Mackenzie of counsel), for appellant.
Fischbein Badillo Wagner Harding, New York, N.Y. (Bruce N. Lederman and Kira L. Polner of counsel), for respondent Federal National Mortgage Association.
Before: GABRIEL M. KRAUSMAN, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the appeal is dismissed as academic, with costs.
In May 2000, the defendant Federal National Mortgage Association (hereinafter Fannie Mae) cross-moved to dismiss the plaintiff's first cause of action, which sought foreclosure of a junior mortgage on the subject premises, insofar as asserted against it. While the cross motion was pending, the plaintiff entered into a stipulation discontinuing the action against Fannie Mae, which was so-ordered by the Supreme Court. Although the discontinuance rendered Fannie Mae's cross motion to dismiss the first cause of action academic ( see NYCTL 1998-2 Trust v. Equitable Funding Corp., 301 A.D.2d 506; Matter of Las Redevelopment Co. v. Frasier, 300 A.D.2d 767; Angelucci v. Sands, 297 A.D.2d 764), the Supreme Court granted the cross motion on the merits. The plaintiff thereafter discontinued or settled his claims against the remaining defendants, thus effectively terminating the litigation. Under these circumstances, the order dismissing the plaintiff's first cause of action insofar as asserted against Fannie Mae on the merits will not affect the rights of the parties. Thus, we dismiss the appeal as academic ( see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714; NYCTL 1998-2 Trust v. Equitable Funding Corp., supra; Angelucci v. Sands, supra).
KRAUSMAN, J.P., GOLDSTEIN, ADAMS and COZIER, JJ., concur.