742 N.Y.S.2d 822 | N.Y. App. Div. | 2002
—Order, Supreme Court, New York County (Barbara Kapnick, J.), entered February 22, 2001, which, to the extent appealed from and appealable, granted plaintiffs cross motion to dismiss the third counterclaim and denied defendant’s motion for sanctions against plaintiff, unanimously affirmed; appeal from that portion of the aforesaid order denying defendant’s motion seeking partial summary judgment upon her fourth counterclaim, unanimously dismissed as moot; all without costs.
After the motion and cross motion were decided, a nonjury trial was conducted on, inter alia, defendant’s fourth counterclaim for breach of contract for failure to pay on a note. The trial court found the note unenforceable for lack of consideration. Thus, defendant’s appeal from the denial of summary judgment upon her fourth counterclaim is moot (see, Hersh v New York City Tr. Auth., 290 AD2d 258, 259; General Elec. Co. v Rabin, 177 AD2d 354, 356).
The motion court properly dismissed the third counterclaim for fraud as duplicative of the fourth counterclaim for breach of contract (see, Coppola v Applied Elec. Corp., 288 AD2d 41). In view of the dismissal of the third counterclaim for fraud, there was no predicate for defendant’s request for imposition of a constructive trust, that remedy being “fraud rectifying” rather than “intent-enforcing” (Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939, 940).
The motion court properly refused to award sanctions against plaintiff. Concur—Andrias, J.P., Saxe, Ellerin, Marlow and Gonzalez, JJ.
