New York Community Bank v Campbell

New York Community Bank v Campbell 2017 NY Slip Op 08278 Decided on November 22, 2017 Appellate Division, Second 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 on November 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.
2016-02714
(Index No. 11291/07)

[*1]New York Community Bank, etc., appellant,

v

Edward F. Campbell, Jr., et al., respondents, et al., defendants.

Fidelity National Law Group, New York, NY (Joyce A. Davis of counsel), and Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale, NY, for appellant (one brief filed).

Edward F. Campbell, Jr., Rockville Centre, NY, respondent pro se and for respondent Carol A. Campbell.

James D. Reddy, P.C., Huntington, NY, for respondent Mary Alice Ruppert, as executor of the estate of Lucy A. Campbell.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated August 1, 2011, as denied those branches of its motion which were for summary judgment on the complaint and dismissing the affirmative defenses set forth in the answer of the defendants Edward F. Campbell, Jr., and Carol A. Campbell, and for an order of reference.

ORDERED that the appeal is dismissed as academic, without costs or disbursements.

In April 2007, the plaintiff commenced this action against, among others, Edward F. Campbell, Jr., and Carol A. Campbell (hereinafter together the Campbells). In the order appealed from dated August 1, 2011, the Supreme Court denied those branches of the plaintiff's motion which were for summary judgment on the complaint and dismissing the affirmative defenses set forth in the joint answer of the Campbells, and for an order of reference. In November 2012, the plaintiff served and filed an amended verified complaint, which asserted additional causes of action alleging fraud, unjust enrichment, equitable subrogation, and equitable lien. The Campbells interposed a joint answer dated January 11, 2013, to the amended verified complaint. The plaintiff filed a notice of appeal from the August 1, 2011, order on February 29, 2016, 10 days after it served the defendants with a copy of the order and written notice of entry.

However, the order appealed from relates to the original complaint, and the affirmative defenses set forth in the Campbells' joint answer thereto. Those pleadings are no longer viable, as they have been superseded by the amended verified complaint, which alleges new causes of action (see Taub v Schon, 148 AD3d 1200, 1201; Pourquoi M.P.S., Inc. v Worldstar Int., Ltd., 64 AD3d 551, 551; Bobash, Inc. v Festinger, 57 AD3d 464, 465). Accordingly, the appeal is academic (see Chalasani v Neuman, 64 NY2d 879, 880; Gotlin v City of New York, 90 AD3d 605, 608; [*2]Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650, 650-651).

The Campbells' remaining contention is academic in light of our determination of the appeal.

RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court