Mizrahi v. US Bank, Natl. Assn. , 156 A.D.3d 618 ( 2017 )

Mizrahi v US Bank, Natl. Assn. (2017 NY Slip Op 08512)

Mizrahi v US Bank, Natl. Assn.

2017 NY Slip Op 08512

Decided on December 6, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX
ANGELA G. IANNACCI, JJ.

2016-08527
(Index No. 16793/14)

[*1]Joseph Mizrahi, respondent,

v

US Bank, National Association, etc., appellant, et al., defendants.

Hogan Lovells US, LLP, New York, NY (Christian Fletcher of counsel), for appellant.

Wenig Saltiel, LLP, Brooklyn, NY (Meryl L. Wenig and Jason M. Fink of counsel), for respondent.

DECISION & ORDER

In an action pursuant to RPAPL 1501(4) to cancel and discharge a mortgage, the defendant US Bank, National Association, appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 13, 2016, which, inter alia, in effect, granted that branch of the plaintiff's motion which was for summary judgment on the complaint.

ORDERED that the appeal is dismissed as academic, without costs or disbursements, and the provision of the order which, in effect, granted the plaintiff's motion for summary judgment and the first through fifth decretal paragraphs thereof are vacated.

In light of our determination on a related appeal granting that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it (see Mizrahi v US Bank, National Association, _____ AD3d _____ [Appellate Division Docket No. 2015-08105; decided herewith]), the instant appeal has been rendered academic.

While it is the general policy of New York courts to simply dismiss an appeal which has been rendered academic, vacatur of an order or judgment on appeal may be an appropriate exercise of discretion where necessary "in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent" (Matter of Hearst Corp. v Clyne, 50 NY2d at 718; see Matter of Adirondack Moose Riv. Comm. v Board of Black Riv. Regulating Dist., 301 NY 219, 223; E-Z Eating 41 Corp. v H.E. Newport L.L.C., 84 AD3d 401, 401-402; Funderburke v New York State Dept. of Civ. Serv., 49 AD3d 809, 811; see also United States v Munsingwear, Inc., 340 US 36, 40-41). Under the particular circumstances of this case, we deem it appropriate to vacate the provisions of the order appealed from (see Mannino v Wells Fargo Home Mtge., Inc., 120 AD3d at 639).

DILLON, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court