Matter of Tracy Garrick v Barbara Tomlins

Matter of Garrick v Tomlins 2005 NY Slip Op 10125 [24 AD3d 763] December 27, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of Tracy Garrick, Appellant,
v
Barbara Tomlins, Doing Business as Humpty Dumpty Day Care Center, et al., Respondents. (And Other Titles.)

—[*1]In a proceeding, inter alia, pursuant to CPLR article 78, in which the purported counterclaim of Tracy Garrick for declaratory and injunctive relief was severed, Tracy Garrick appeals from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated January 13, 2004, as granted the motion of Barbara Tomlins, doing business as Humpty Dumpty Day Care Center, for summary judgment dismissing the purported counterclaim.

Ordered that the appeal is dismissed as academic, with costs to the respondent Barbara Tomlins, doing business as Humpty Dumpty Day Care Center.

In view of the fact that a stipulation of settlement dated March 5, 2004, between Barbara Tomlins, doing business as Humpty Dumpty Day Care Center, and the Village of Wappingers Falls purporting to legalize the use in question was entered into after issuance of the order under review, the appeal has been rendered academic and therefore must be dismissed (see Matter of Peconic Baykeeper, Inc. v Suffolk County, 17 AD3d 371 [2005]). Adams, J.P., Krausman, Fisher and Lifson, JJ., concur.