Opinion
No. 23032/03.
Decided on December 5, 2006.
By notice of motion Aramark Services, Inc., (hereinafter Aramark) seeks an order granting summary judgment dismissing plaintiffs' complaint pursuant to CPLR § 3212.
On June 24, 2003, plaintiffs commenced this action by filing a summons and verified complaint with the Kings County Clerk's office (KCC). Issue was joined by Aramark's verified answer dated September 17, 2003. As of the date of this decision, defendant Kingsbrook Jewish Medical Center (hereinafter Kingsbrook), has not appeared in this action.
Plaintiff's complaint contains twenty four allegation of fact supporting William Stratis' cause of action for compensatory damages and his wife, Elen Stratis' derivative claim for the loss of services and consortium of her co-plaintiff husband.
Aramark's motion consists of their counsel's affirmation and five annexed exhibits, namely: plaintiff's summons and verified complaint, Aramark's answer, plaintiff's verified bill of particulars, and the deposition transcripts of William Stratis and Neville Graham, a division manager of Aramark. Aramark also submitted an additional affirmation of and a four page document referred to as schedule 1 of the contractual services agreement between Kingsbrook and Aramark.
Plaintiff's opposition papers consists of their counsel's affirmation and two annexed exhibits, namely, the service agreement between defendant Kingsbrook and Aramark, and the same aforementioned deposition transcripts of Neville Graham.
Aramark's reply consists of their counsel's affirmation and only the third page of the aforementioned schedule 1. Plaintiff's submitted an affirmation of their counsel as a sur-reply.
The court in preparation for the drafting of the instant decision requisitioned and reviewed the KCC file. Upon review of same, the court discovered that the plaintiff discontinued the action against Aramark with prejudice by a written stipulation. The stipulation is dated September 13, 2006 and was filed with the KCC on October 6, 2006. The stipulation was signed by Theodore Pavlonis, counsel for the plaintiffs and David P. Redmond, of the law firm of Kral, Clerkin, Redmond, Ryan Perry Girvin, LLP, counsel for Aramark.
CPLR § 3217(a) (2) provides :
Voluntary discontinuance. (a) Without an order. Any party asserting a claim may discontinue it without an order by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided that no party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action.
A review of the stipulation demonstrates that plaintiffs have voluntarily discontinued their claim by stipulation pursuant to CPLR § 3217(a)(2). In light of the settlement of the matter the court deems the pending motion to be moot. "A matter is moot when a determination is sought on a matter which, if rendered, could not have any practical effect on the existing controversy" ( SOS Oil Corp. v. Norstar Bank of Long Island, 152 AD2d 223, 228 [2nd Dept 1989].