not so moot

Mannino v Wells Fargo Home Mtge., Inc., 2014 NY Slip Op 05846 [2nd Dept. 2014]

While it is the general policy of New York courts to simply dismiss an appeal which has been rendered academic, vacatur of an order or judgment on appeal may 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" (Matter of Hearst Corp. v Clyne, 50 NY2d at 718; see Matter of Adirondack Moose Riv. Comm. v Board of Black Riv. Regulating Dist., 301 NY 219; E-Z Eating 41 Corp. v H.E. Newport L.L.C., 84 AD3d 401; Funderburke v New York State Dept. of Civ. Serv., 49 AD3d 809). Here, the plaintiffs sold the premises and satisfied the subject mortgage under threat of foreclosure. They " ought not in fairness be forced to acquiesce in'" the unreviewable order, which could spawn adverse legal consequences due to its res judicata effect (Matter of Ruskin v Safir, 257 AD2d 268, 273, quoting U.S. Bancorp Mortgage Co. v Bonner Mall Partnership, 513 US 18, 25). Accordingly, we vacate so much of the order dated July 5, 2012, as awarded the defendants summary judgment dismissing the complaint.

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