Citibank, N. A. v. Horoshko

255 A.D.2d 544, 680 N.Y.S.2d 867, 1998 N.Y. App. Div. LEXIS 12836

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1998
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants Roger Horoshko and Valentine Horoshko appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), dated September 4, 1996, as denied that branch of their motion which was to vacate an order of the same court dated February 15, 1996, granting the plaintiff leave to serve a supplemental summons upon them by publication.

Ordered that the appeal is dismissed as academic, with costs to the appellants.

The plaintiff made an ex parte application for expedient service pursuant to CPLR 308 (5). In an order dated February 15, 1996, the Supreme Court, Queens County, granted the application and permitted service upon the appellants by publication. Following service by publication, the appellants made a motion, inter alia, to vacate the February 15, 1996, order. The order on appeal denied the appellants’ motion. After the appellants perfected this appeal, the plaintiff voluntarily made its own motion to vacate the February 15, 1996, order. In an order dated September 1, 1998, the Supreme Court, Queens County (Schmidt, J.), granted the plaintiffs motion, and dismissed the complaint as against the appellants. Thus, since the subject matter of the appellants’ appeal is no longer at issue, the appeal is academic. However, the appellants should be awarded the costs of the instant appeal since the plaintiff did not make its motion to vacate until after the instant appeal was perfected. Bracken, J. P., Copertino, Santucci and Altman, JJ., concur.