Opinion
2014-08-27
Fred PESCATORE, etc., et al., appellants, et al., plaintiff, v. DUNE ALPIN FARM PROPERTY OWNERS ASSOCIATION, INC., et al., respondents, et al., defendant.
MacLachlan & Eagan, East Hampton, N.Y. (David E. Eagan and Brian E. Matthews of counsel), for appellants. Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Anthony C. Pasca and Kevin A. McGowin of counsel), for respondents Dune Alpin Farm Property Owners Association, Inc., and Board of Directors of Dune Alpin Farm Property Owners Association, Inc.
MacLachlan & Eagan, East Hampton, N.Y. (David E. Eagan and Brian E. Matthews of counsel), for appellants. Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Anthony C. Pasca and Kevin A. McGowin of counsel), for respondents Dune Alpin Farm Property Owners Association, Inc., and Board of Directors of Dune Alpin Farm Property Owners Association, Inc.
Tarbet & Lester, PLLC, Amagansett, N.Y. (Brian J. Lester of counsel), for respondents La Pampa Polo Club, LLC, La Pampa Polo Club and School, Dennis M. Banks, and Dawn Neway (joining in the brief filed by the respondents Dune Alpin Farm Property Owners Association, Inc., and Board of Directors of Dune Alpin Farm Property Owners Association, Inc.).
John C. Jilnicki, Town Attorney, East Hampton, N.Y., for respondent Town of East Hampton.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
In an action, inter alia, for injunctive relief based on alleged violations of scenic easements and a restrictive covenant, the plaintiffs Fred Pescatore, Joseph Kremer, Anthony Brown, and Winifred Brown appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated August 1, 2012, as denied their motion, made jointly with the plaintiff Kenneth Wyse, for a preliminary injunction, and granted the cross motion of the defendants La Pampa Polo Club, LLC, La Pampa Polo Club and School, Dennis M. Banks, and Dawn Neway, and that branch of the separate cross motion of the defendants Dune Alpin Farm Property Owners Association, Inc., Board of Directors of Dune Alpin Farm Property Owners Association, Inc., and Dune Alpin Farm Corp., which were to dismiss the complaint pursuant to CPLR 3211(a).
ORDERED that the appeal is dismissed as academic, without costs or disbursements.
In this action, the plaintiffs sought to enjoin the operation of a commercial polo club and school on certain real property pursuant to a certain lease. It is undisputed that during the pendency of this appeal, the lease expired by its own terms and was not renewed. Accordingly, the appeal has been rendered academic ( see Aniqa Halal Live Poultry Corp. v. Montague–Lee Ltd. Partnership, 110 A.D.3d 934, 973 N.Y.S.2d 740; Matter of Fredericks v. Ambrose, 100 A.D.3d 632, 953 N.Y.S.2d 281). Contrary to the appellants' contention, this matter does not warrant invoking the exception to the mootness doctrine ( see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876).
To the extent that the appellants argue that the entitlement of the parties to an award of attorneys' fees will be directly affected by the determination of this appeal, we note that the issue of an award of attorneys' fees has previously been determined on the merits. A separate appeal was taken from an order and judgment of the Supreme Court entered March 21, 2013, which awarded attorneys' fees in this matter, and that appeal was dismissed for failure to prosecute by decision and order of this Court dated June 27, 2014 ( see S.M.F. v. SLS Residential, Inc., 72 A.D.3d 1014, 900 N.Y.S.2d 331; see also FMA/Constr. Mgt. Corp. v. Yaabetz, 158 A.D.2d 664, 552 N.Y.S.2d 41).