Giannuzzi v Kearney

Giannuzzi v Kearney 2015 NY Slip Op 03003 Decided on April 9, 2015 Appellate Division, Third 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 and Entered: April 9, 2015
518925

[*1]VEYA GIANNUZZI, Appellant,

v

ERIC KEARNEY, Respondent.

Calendar Date: February 10, 2015
Before: Lahtinen, J.P., Garry, Lynch and Devine, JJ.

Carman M. Garufi, Binghamton, for appellant.

Lahtinen, J.P.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Smith, J.), entered April 25, 2014 in Broome County, which, among other things, granted defendant's motion for an award of temporary maintenance.

In April 2014, Supreme Court (Smith, J.) directed plaintiff to pay pendente lite maintenance to defendant of $3,500 per month. The current appeal is from such order. However, while the appeal was pending, Supreme Court (Reynolds Fitzgerald, J.), replaced the April 2014 order with an order in December 2014 directing plaintiff to pay pendente lite maintenance of $500 per month. Inasmuch as the relevant part of the order on appeal has been replaced by the December 2014 order, the current appeal from the April 2014 order is now moot (see e.g. Matter of Lauren L. [Cassi M.], 79 AD3d 1172, 1172 [2010]; Hayes v Hayes, 32 AD3d 1159, 1159-1160 [2006]; Batson v Batson, 277 AD2d 750, 751 [2000]). Plaintiff's contention that the amount awarded in the April 2014 order was excessive can be asserted at trial and, if

meritorious, may be "considered in appropriately adjusting the equitable distribution award" (Fox v Fox, 306 AD2d 583, 584 [2003], appeal dismissed 1 NY3d 622 [2004]; see Johnson v Chapin, 12 NY3d 461, 466 [2009]).

Garry, Lynch and Devine, JJ., concur.

ORDERED that the appeal is dismissed, as moot, without costs.