| Cherico, Cherico & Assoc. v Lamanna |
| 2008 NY Slip Op 52292(U) [21 Misc 3d 137(A)] |
| Decided on November 7, 2008 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the City Court of White Plains, Westchester County (Jo Ann Friia, J.),
entered April 4, 2007. The order, insofar as appealed from as limited by the brief, denied defendant's
motion for an order granting leave to serve an amended answer.
Appeal dismissed as academic.
On or about June 30, 2005, plaintiff law firm commenced the instant action to recover legal fees for services rendered to defendant in connection with various real estate and litigation matters. In September of 2005, defendant served an answer generally denying the allegations of the complaint. In February of 2007, defendant moved for leave to amend the answer to assert a counterclaim for legal malpractice. Plaintiff opposed the motion and cross-moved to strike the answer for defendant's failure to adequately respond to its combined discovery demands. By order entered April 4, 2007, the court below denied defendant's motion for leave to amend the answer and granted plaintiff's cross motion, conditioned upon defendant's failure to serve a complete response to plaintiff's combined discovery demands within 30 days of service of the order. The instant appeal by defendant, as limited by the brief, from so much of the order as denied his motion for leave to amend the answer, ensued.
After defendant failed to serve a complete response to plaintiff's combined discovery demands within 30 days of service of the April 4, 2007 order, plaintiff moved in the court below for judgment in its favor. By order entered July 20, 2007, the court below (Leak, J.) granted plaintiff's motion for judgment on the issue of liability based upon the stricken answer, and set the matter down for a hearing to assess the reasonable value of the legal services rendered by plaintiff to defendant. Accordingly, since the instant appeal, which is predicated on the issue of whether the court below properly denied defendant's motion for leave to amend the answer to assert a counterclaim, has been rendered academic by the striking of defendant's answer (see e.g. [*2]Bennerman v General Motors Corp., 39 AD3d 788 [2007]; Livny v Rotella, 305 AD2d 377 [2003]), defendant's appeal is dismissed.
Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: November 07, 2008