| Pescatore v Dune Alpin Farm Prop. Owners Assn.,Inc. |
| 2014 NY Slip Op 05967 [120 AD3d 785] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Fred Pescatore 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.
Tarbet & Lester, PLLC, Amagansett, N.Y. (Brian J. Lester of counsel), forrespondents 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 FarmProperty Owners Association, Inc., and Board of Directors of Dune Alpin Farm PropertyOwners Association, Inc.).
John C. Jilnicki, Town Attorney, East Hampton, N.Y., for respondent Town of EastHampton.
In an action, inter alia, for injunctive relief based on alleged violations of sceniceasements and a restrictive covenant, the plaintiffs Fred Pescatore, Joseph Kremer,Anthony Brown, and Winifred Brown appeal, as limited by their brief, from so much ofan order of the Supreme Court, Suffolk County (Spinner, J.), dated August 1, 2012, asdenied their motion, made jointly with the plaintiff Kenneth Wyse, for a preliminaryinjunction, and granted the cross motion of the defendants La Pampa Polo Club, LLC, LaPampa Polo Club and School, Dennis M. Banks, and Dawn Neway, and that branch ofthe separate cross motion of the defendants Dune Alpin Farm Property OwnersAssociation, Inc., Board of Directors of Dune Alpin Farm Property Owners Association,Inc., and Dune Alpin Farm Corp., which were to dismiss the complaint pursuant toCPLR 3211 (a).
Ordered that the appeal is dismissed as academic, without costs ordisbursements.
In this action, the plaintiffs sought to enjoin the operation of a commercial polo cluband school on certain real property pursuant to a certain lease. It is undisputed that duringthe 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 AD3d 934 [2013]; Matter of Fredericks v Ambrose, 100 AD3d 632 [2012]).Contrary to the [*2]appellants' contention, this matterdoes not warrant invoking the exception to the mootness doctrine (see Matter ofHearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).
To the extent that the appellants argue that the entitlement of the parties to an awardof attorneys' fees will be directly affected by the determination of this appeal, we notethat 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 enteredMarch 21, 2013, which awarded attorneys' fees in this matter, and that appeal wasdismissed for failure to prosecute by decision and order of this Court dated June 27, 2014(see S.M.F. v SLS Residential,Inc., 72 AD3d 1014 [2010]; see also FMA/Constr. Mgt. Corp. vYaabetz, 158 AD2d 664 [1990]). Mastro, J.P., Lott, Sgroi and Cohen, JJ.,concur.