Condor Capital Corp. v Cals Invs., LLC, 2022 NY Slip Op 01237 [202 AD3d 618]

February 24, 2022

Appellate Division, First Department

[*1]

Condor Capital Corp., Appellant,

v

Cals Investors, LLC, et al., Respondents, et al., Defendant.

Kirsch & Niehaus PLLC, New York (Paul R. Niehaus of counsel), for appellant.

Kane Kessler, P.C., New York (Daniel Gimmel of counsel), for respondents.

Appeals from order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about March 12, 2020, which, inter alia, granted defendants-respondents’ motion to dismiss the first amended complaint, and order, same court (Andrew Borrok, J.), entered on or about February 8, 2021, which denied plaintiff’s motion pursuant to CPLR 3025 to amend the complaint, unanimously dismissed, without costs, as moot.

Plaintiff appeals from the motion court’s refusal to consider new causes of action that it asserted solely and for the first time in its brief in opposition to defendants’ motion to dismiss and that it sought to assert by way of amendment to the complaint after defendants’ motion had been granted.

After the orders were issued, plaintiff filed a new action in which it asserts the very claims it now seeks to reinstate. Thus, the appeal from both orders is moot ( see BDCM Fund Adviser, L.L.C. v Zenni , 98 AD3d 915 [1st Dept 2012]). Concur—Webber, J.P., Kern, Moulton, González, Mendez, JJ. [Prior Case History: 2020 NY Slip Op 30765(U).].