| Weber v Goss |
| 2005 NY Slip Op 03840 |
| Decided on May 9, 2005 |
| Appellate Division, Second Department |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 9, 2005
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
2004-02647
v
Brooks Goss, et al., appellants. (Index No. 17607/03)
Costantino Fragale, Eastchester, N.Y., for appellants.
Hinman, Howard & Kattell, LLP, White Plains, N.Y.
(Clifford S. Weber of counsel), for
respondent.
In an action to recover damages for libel, the defendants appeal from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered February 13, 2004, as denied that branch of their motion which was to dismiss the original complaint pursuant to CPLR 3211 for failure to state a cause of action.
ORDERED that the appeal is dismissed as academic, without costs or disbursements.
The plaintiff, an instructional assistant employed by the Yorktown Central School District, commenced this action against the defendants, who are the parents of one of her former students, to recover damages arising from an allegedly libelous statement made by the defendants in a letter addressed to a Yorktown Central School District official. After the defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211 for failure to state a cause of action, the plaintiff cross-moved pursuant to CPLR 3025 for leave to serve and file an amended complaint. The court denied the motion and granted the cross motion.
As appears from their notice of appeal, the defendants appeal only from so much of the order as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211(2). "Because the original complaint was superseded by the amended complaint, the defendants' challenge to the original complaint has been rendered academic, and the proper course [*2]is to dismiss the appeal" (Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650; see Chalasani v Neuman, 64 NY2d 879).
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
2004-02647
DECISION & ORDER ON MOTION
Linda S. Weber, respondent,
v Brooks Goss, et al., appellants.
(Index No. 17607/03)
Motion by the respondent on an appeal from an order of the Supreme Court, Westchester County, entered February 13, 2004, in effect, to strike stated portions of the appellants' brief. By decision and order on motion dated January 27, 2005, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, and upon the argument of the appeal, it is
ORDERED that the motion is denied as academic in light of the disposition of the appeal (see Weber v Goss, AD3d [decided herewith]).
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court