Andrew Greenberg, Inc.v.Sir-Tech Software

Appellate Division of the Supreme Court of New York, Third DepartmentDec 11, 2003
2 A.D.3d 1042 (N.Y. App. Div. 2003)
2 A.D.3d 1042768 N.Y.S.2d 420

94215.

Decided and Entered: December 11, 2003.

Appeal from an order of the Supreme Court (Ledina, J.), entered April 2, 2003 in Sullivan County, which denied certain defendants' motion for summary judgment dismissing the third amended complaint against them.

Drew, Davidoff Edwards L.L.P., Monticello (Michael Davidoff of counsel), for appellants.

Weiss Associates P.C., New York City (Matthew Weiss of counsel), for respondent.

Before: Mercure, J.P., Carpinello, Mugglin, Lahtinen and Kane, JJ.


MEMORANDUM AND ORDER


MERCURE, J.P.

On a prior appeal, this Court granted a motion by defendants 1259190 Ontario, Inc. and Sir-Tech Canada, Ltd. (hereinafter collectively referred to as defendants) to dismiss the second amended complaint in this breach of contract action ( 297 A.D.2d 834). We concluded that plaintiff failed to make a prima facie showing of personal jurisdiction (id. at 836-837). While that appeal was pending before us, Supreme Court granted plaintiff's motion to amend the complaint. Following this Court's dismissal of the second amended complaint, defendants moved to dismiss the third amended complaint based on lack of personal jurisdiction. Because issue had been joined, Supreme Court treated the motion as one for summary judgment and denied it. Defendants appeal, and we now reverse.

Although an amended complaint renders moot an appeal from an order addressed to the sufficiency of the original pleading (see Smith v. Russell Sage Coll., 78 A.D.2d 913, 913, affd 54 N.Y.2d 185; see also Chalasani v. Neuman, 64 N.Y.2d 879, 880; Titus v. Titus, 275 A.D.2d 409, 409-410), the sufficiency of the complaint is not at issue on this appeal. Moreover, the third amended complaint did not cure the jurisdictional defects set forth in this Court's prior decision. Accordingly, the filing of the third amended complaint did not render moot our decision on defendants' prior motion to dismiss (see EDP Hosp. Computer Sys. v. Bronx-Lebanon Hosp. Ctr., 212 A.D.2d 570, 571; Poley v. Rochester Community Sav. Bank, 140 A.D.2d 933, 934; see generally 5 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 3025.07). Inasmuch as plaintiff had a full and fair opportunity to litigate the issue of personal jurisdiction during the prior appeal, our decision dismissing the second amended complaint constitutes the law of the case and defendants' motion should have been granted (see Shawangunk Conservancy v. Fink, 305 A.D.2d 902, 903;Bennett v. Nardone, 298 A.D.2d 790, 790-791, lv dismissed 99 N.Y.2d 579).

Carpinello, Mugglin and Lahtinen, JJ., concur; Kane, J., not taking part.

ORDERED that the order is reversed, on the law, with costs, motion by defendants 1259190 Ontario, Inc. and Sir-Tech Canada, Ltd. granted, summary judgment awarded to said defendants and third amended complaint dismissed against them.