Vigiletti v Sears, Roebuck & Co.

2007 NYSlipOp 06109

July 17, 2007

Appellate Division, Second Department

As corrected through Wednesday, September 12, 2007

Kenneth Vigiletti et al., Appellants, v Sears, Roebuck & Co., Respondent.

—[*1]Labaton Sucharow & Rudoff, LLP, New York, N.Y. (Barbara J. Hart, Natalie S. Marcus, Barry Michael Okun, and Miller, Faucher & Cofferty, LLP [Marun A. Miller and Jennifer W. Spengel of counsel), for appellants.

Greenberg Traurig, LLP, New York, N.Y. (Loring I. Fenton and Sophia Tsokos of counsel), for respondent.

In a putative class action to recover damages for violation of General Business Law § 349 and unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Rudolph, J.), dated September 23, 2005, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) and, in effect, denied their cross application for leave to replead pursuant to CPLR 3211 (e).

Ordered that the appeal from the order is dismissed, with costs, as that order was superseded by an order of the same court dated April 24, 2006, made upon reargument (see Vigiletti v Sears, Roebuck & Co., 42 AD3d 497 [2007] [decided herewith]). Ritter, J.P., Goldstein, Fisher and Balkin, JJ., concur.