Williams v. Feig

12 A.D.3d 504, 783 N.Y.S.2d 858, 2004 N.Y. App. Div. LEXIS 13672

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2004
• Status: Published

Opinion

In an action, inter alia, to foreclose a mortgage, the defendant Goldy Feig, also known as Goldy Weiss, also known as Goldie Feig Weiss, appeals from (1) an order of the Supreme Court, Rockland County (Nelson, J.), dated May 29, 2003, which denied her motion for summary judgment dismissing the amended complaint as time-barred and granted the plaintiffs cross motion for leave to serve a second amended complaint, and (2) an order of the same court dated October 3, 2003, which denied her motion for leave to reargue.

Ordered that the appeal from the order dated October 3, 2003, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the appeal from so much of the order dated May 29, 2003, as denied the motion for summary judgment dismissing the amended complaint as time-barred is dismissed as academic; and it is further,

Ordered that the order dated May 29, 2003, is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The Supreme Court providently exercised its discretion in granting the plaintiffs cross motion for leave to serve a second amended complaint. Moreover, since the second amended complaint superseded the amended complaint, the appeal from so much of the order dated May 29, 2003, as denied the motion for summary judgment dismissing the amended complaint as time-barred has been rendered academic (see Elegante Leasing, Ltd. v Cross Trans. Svc, Inc., 11 AD3d 650 [2004]; Baker v 16 Sutton Place Apt. Corp., 2 AD3d 119 [2003]). Florio, J.P., Krausman, Fisher and Lifson, JJ., concur.