Melikov v. 66 Overlook Terrace Corp.

2024 NY Slip Op 05409

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 2024
• Docket: Index No. 153504/18 Appeal No. 2935 Case No. 2023-03946
• Status: Published

Opinion

Melikov v 66 Overlook Terrace Corp. (2024 NY Slip Op 05409)

Melikov v 66 Overlook Terrace Corp.

2024 NY Slip Op 05409

Decided on October 31, 2024

Appellate Division, First 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: October 31, 2024
Before: Manzanet-Daniels, J.P., Friedman, Gesmer, Shulman, Michael, JJ.

Index No. 153504/18 Appeal No. 2935 Case No. 2023-03946

[*1]Bakhtiyor Melikov et al., Plaintiffs-Respondents,

v

66 Overlook Terrace Corp., et al., Defendants-Respondents, Patriot Plumbing and Heating Inc., Defendant, Omar Fakhoury, Defendant-Appellant.

Devitt Spellman Barrett, LLP, Hauppauge (Christi M. Kunzig of counsel), for appellant.

Fleischner Potash, New York (Alisa Dultz of counsel), for 66 Overlook Terrace Corp. and Tudor Realty Services, Corp., respondents.

Appeal from order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about July 7, 2023, which, to the extent appealed from, denied defendant Omar Fakhoury's motion for summary judgment dismissing the cross-claim of defendants 66 Overlook Terrace Corp and Tudor Realty Services, Corp. for contractual indemnification, unanimously dismissed, without costs, as moot.

After entry of the order on appeal, Supreme Court granted a motion by 66 Overlook Terrace and Tudor Realty to the extent the motion sought summary judgment on their cross-claim for contractual indemnification. We take judicial notice of that order (see e.g., Gilat v Sutton, 220 AD3d 569, 570 [1st Dept 2023]), dated September 7, 2023, which effectively superseded the order on appeal and rendered it moot (see Matter of T.R. [Jaquasia G.], 227 AD3d 530, 530 [1st Dept 2024]). Fakhoury and plaintiff Bakhtiyor Melikov failed to appeal from the September 7 superseding order, making it law of the case on the issue (see e.g. Antonetti v City of New York, 111 AD3d 558, 559 [1st Dept 2013]).

In view of the foregoing, we need not consider Fakhoury's remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 31, 2024