313 West 57 Rest. Corp. v. 313 West 57th Associates

—Order, Supreme Court, New York County (Myriam Altman, J.), entered March 16, 1992, inter alia, denying counterclaim defendant’s motion for summary judgment dismissing defendant’s counterclaims for ejectment, unanimously dismissed as moot, without costs.

During the pendency of this appeal, in a prior related appeal between these litigants, this Court on October 22, 1992 (186 AD2d 466), granted defendant landlord an order of possession to the subject commercial premises, while affirming that portion of an IAS order which directed counterclaim defendant, who claimed a right to possession pursuant to a Surrender Agreement from plaintiff, to post an undertaking. The undertaking was not posted and defendant landlord successfully moved, inter alia, for an order of ejectment against counterclaim defendant which was granted by the IAS Court on October 22, 1992. Due to the change in circumstances resolving the matter and the lack of controversy, the appeal should be dismissed as moot (Matter of Anonymous v New York City Health & Hosps. Corp., 70 NY2d 972, 974). Concur— Wallach, J. P., Kupferman, Ross and Kassal, JJ.