E-Z Eating 41 Corp. v H.E. Newport L.L.C., 2011 NY Slip Op 03652 (App. Div., 1st 2011)

Given that the time to cure the alleged lease default has expired, and that the E-Z Eating 41 Corp. has surrendered possession of the premises, the orders appealed are presently moot (see Matter of Johnson v Pataki, 91 NY2d 214, 222 [1997]; cf. Automated Ticket Sys., Ltd. v Quinn, 90 AD2d 738, 739 [1982] [dismissing claims for declaratory relief relating to contract; "[t]he contract having expired, all of the rights asserted by plaintiff against defendants have accrued, and plaintiff should seek its remedy in an action at law for damages"] [internal quotation marks omitted]). In addition, there is no indication that the appeal should be excepted from the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

While the general rule in New York is to simply dismiss an appeal which has been rendered moot, vacatur of an order or judgment on appeal has, in circumstances such as those presented here, been held to be an appropriate exercise of discretion where necessary " in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent'" (see Funderburke v New York State Dept. of Civ. Serv., 49 AD3d 809, 811 [2008], quoting Matter of Hearst Corp. v Clyne, 50 NY2d at 718).

There is a long dissent.

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