Torts · MBE-tested

A. John Erlacher et al., Appellants, v. Suffolk County Department of Parks, Respondent

51 A.D.2d 742·New York Supreme Court, Appellate Division·1976·NY

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Opinion

A. John Erlacher et al., Appellants, v Suffolk County Department of Parks, Respondent. [MAJORITY] In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Suffolk County, entered May 16, 1975, which denied their motion to dismiss the affirmative defense of failure to serve a timely notice of claim or, in the alternative, for leave to file a late notice of claim. Upon renewal of defendant’s motion (in its brief) to dismiss the appeal, said motion is granted and the appeal is dismissed, without costs or disbursements. The appeal has been rendered academic by reason of a subsequent order of the Supreme Court which dismissed the complaint (see Champion Int. Corp. v Dependable Ind. Corp., 47 AD2d 473; Herold v Breike, 49 AD2d 939). Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Shapiro, JJ., concur.