Weber v. Goss

— In an action to recover damages for libel, the defendants appeal from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered February 13, 2004, as denied that branch of their motion which was to dismiss the original complaint pursuant to CPLR 3211 for failure to state a cause of action.

Ordered that the appeal is dismissed as academic, without costs or disbursements.

The plaintiff, an instructional assistant employed by the Yorktown Central School District, commenced this action against the defendants, who are the parents of one of her former students, to recover damages arising from an allegedly libelous statement made by the defendants in a letter addressed to a Yorktown Central School District official. After the defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211 for failure to state a cause of action, the plaintiff cross-moved pursuant to CPLR 3025 for leave to serve and file an amended complaint. The court denied the motion and granted the cross motion.

As appears from their notice of appeal, the defendants appeal only from so much of the order as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211 (2). “Because the original complaint was superseded by the amended complaint, the defendants’ challenge to the original complaint has been rendered academic, and the proper course is to dismiss the appeal” (Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650, 650-651 [2004]; see Chalasani v Neuman, 64 NY2d 879 [1985]). H. Miller, J.P., Krausman, Crane and Fisher, JJ., concur.