PNY III, LLC v. Axis Design Grp. Int'l, LLC

• Decision Date: 21 March 2017
• Docket Number: 159743/14, 3446, 151873/15, 3445.
• Citation: 50 N.Y.S.3d 58,148 A.D.3d 550
• Parties: PNY III, LLC formerly known as PNY III, LP, et al., Plaintiffs, v. AXIS DESIGN GROUP INTERNATIONAL, LLC, et al., Defendants–Respondents, ULM II Holding Corp, Defendant–Appellant. United Church Insurance Association as subrogee of Church of the Covenant Presbyterian, Plaintiff, v. Axis Design Group International, LLC, et al., Defendants–Respondents, ULM II Holding Corp, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 550

50 N.Y.S.3d 58

PNY III, LLC formerly known as PNY III, LP, et al., Plaintiffs,

v.AXIS DESIGN GROUP INTERNATIONAL, LLC, et al., Defendants–Respondents,ULM II Holding Corp, Defendant–Appellant.

United Church Insurance Association as subrogee of Church of the Covenant Presbyterian, Plaintiff,

v.Axis Design Group International, LLC, et al., Defendants–Respondents,ULM II Holding Corp, Defendant–Appellant.

159743/14, 3446, 151873/15, 3445.

Supreme Court, Appellate Division, First Department, New York.

March 21, 2017.

Haworth Coleman & Gerstman, LLC, New York (Barry Gerstman of counsel), for appellant.

Byrne & O'Neill, LLP, New York (Albert Westey McKee of counsel), for respondents.

ACOSTA, J.P., RENWICK, MANZANET–DANIELS, WEBBER, GESMER, JJ.

Appeals from orders, Supreme Court, New York County (Paul Wooten, J.), entered November 16, 2015, which granted the motions of defendants Axis Design Group International LLC (Axis) and Joseph V. Lieber, P.E., pursuant to CPLR 3211(a)(1) and (7), dismissing plaintiff PNY III, LLC f/k/a PNY III, LP and American Guarantee and Liability Insurance Company a/s/o PNY III, LLC f/k/a PNY III, LP,'s (PNY) complaint as against them, and dismissing plaintiff United Church Insurance Association a/s/o Church of the Covenant Presbyterian's (United Church) complaint as against them, unanimously dismissed, without costs, as moot.

In each of these appeals, ULM, which appeals the respective dismissals of plaintiffs PNY's and United Church's direct claims as against Axis and Lieber, is not an aggrieved party (see Rodriguez v. Heritage Hills Socy., Ltd., 141 A.D.3d 482, 483, 36 N.Y.S.3d 15 [1st Dept.2016], citing Hecht v. City of N.Y., 60 N.Y.2d 57, 467 N.Y.S.2d 187, 454 N.E.2d 527 [1983] ; see also Rojas v. Paine, 125 A.D.3d 742, 4 N.Y.S.3d 85 [2d Dept.2015] ). Moreover, PNY settled its action with Axis and Lieber, releasing those defendants and executing a stipulation of discontinuance with prejudice, and the Church has discontinued, with prejudice, its action against Axis and Leiber. Thus, even if ULM were an aggrieved party, these appeals must nevertheless be dismissed as moot (see Matter of Anonymous v. New York City Health & Hosps. Corp., 70 N.Y.2d 972, 974, 525 N.Y.S.2d 796, 520 N.E.2d 515 [1988] ).

We have considered ULM's remaining contentions and find them unavailing.