REYNOLDS, SHARELLE v. KELLY, RICHARD

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2014
• Docket: CA 13-01390
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

328 CA 13-01390 PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

SHARELLE REYNOLDS, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

RICHARD KELLY, BETTE KELLY AND MARK KELLY, DEFENDANTS-RESPONDENTS.

ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BOEGGEMAN, GEORGE & CORDE, P.C., ALBANY (PAUL A. HURLEY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Oneida County (David A. Murad, J.), entered November 29, 2012 in a personal injury action. The order, among other things, denied plaintiff’s cross motion for a protective order disqualifying the designated defense examiner.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained as the result of her exposure to lead paint as a child while residing in an apartment owned by defendants. Plaintiff contends on appeal that Supreme Court erred in denying her cross motion for a protective order seeking disqualification of the designated defense examiner, a neuropsychologist, or, in the alternative, directing that the examination be recorded. While this appeal was pending, the challenged examination was conducted and the examiner has since issued a report. We conclude that plaintiff’s appeal is moot as a result of those intervening circumstances, and this case does not fall within any exception to the mootness doctrine (see Cuevas v 1738 Assoc., L.L.C., 111 AD3d 416, 416; see also Hughes v Farrey, 39 AD3d 431, 431; see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715). We therefore dismiss the appeal.

Entered: March 21, 2014 Frances E. Cafarell Clerk of the Court