Espinoza v. Mark Suzman (Gates Found.)

75 Misc. 3d 143(A), 2022 NY Slip Op 50624(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 1, 2022
• Docket: 2021-809 K C
• Status: Unpublished

Opinion

Espinoza v Mark Suzman (Gates Found.) (2022 NY Slip Op 50624(U)) [*1]

Espinoza v Mark Suzman (Gates Found.)

2022 NY Slip Op 50624(U) [75 Misc 3d 143(A)]

Decided on July 1, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-809 K C

Bryan Espinoza, Appellant,

against

Mark Suzman (Gates Foundation), Respondent.

Bryan Espinoza, appellant pro se. K & L Gates, LLP (Joanna A. Diakos of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), entered October 25, 2021. The order granted defendant's motion to dismiss the complaint.

ORDERED that the appeal is dismissed as moot.

The summons with endorsed complaint in this action states that plaintiff is seeking to recover the total principal sum of $95,600 for "Personal Injuries," "Failure to provide proper services," "Loss of time for work," "Dishonored Check," and "Monies Due." Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) and (8). By order entered October 25, 2021, the Civil Court (Nicholas W. Moyne, J.) granted defendant's motion finding that "[p]laintiff did not serve the defendant pursuant to the CPLR." On November 4, 2021, plaintiff filed a second action against defendant in the Civil Court (index No. CV-026562-21/KI), in which the endorsed complaint set forth the same five claims as the endorsed complaint in the instant action. Defendant accepted service of the second summons with endorsed complaint. Plaintiff then filed a notice of appeal from the October 25, 2021 order on November 5, 2021.

A court "may take judicial notice of undisputed court records and files" (Matter of [*2]Khatibi v Weill, 8 AD3d 485, 485 [2004]; see Matter of Allen v Strough, 301 AD2d 11, 18 [2002]; Ptasznik v Schultz, 247 AD2d 197 [1998]). By instituting the second action, of which we take judicial notice, plaintiff effectively abandoned the instant action, thereby mooting the appeal from the Civil Court's October 25, 2021 order (see Jarmuth v Wagner, 190 AD3d 527 [2021]; Matter of Allstate Ins. Co. v Torrales, 186 AD2d 649 [1992]; Sherrill v Grayco Bldrs., 99 AD2d 965, 966-967 [1984], affd 64 NY2d 261 [1985]).

Accordingly, the appeal is dismissed as moot.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 1, 2022