FS KIDS, LLC v. COMPENSATION RISK MANAGERS, LLC

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 257 CA 10-01068 PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. FS KIDS, LLC, DOING BUSINESS AS BUDWEY’S FOOD MARKET, MASK FOODS, INC., VALU HOME CENTERS, INC., KBLM FOODS, INC., DOING BUSINESS AS BLASDELL JUBILEE, KDJB FOODS, INC., DOING BUSINESS AS SAVE-A-LOT ORDER LACKAWANNA, GAIGE & SON GROCERY, INC., DOING BUSINESS AS CORNING JUBILEE, TJ’S MARKET, INC., DOING BUSINESS AS HORSEHEADS JUBILEE, BB&T SUPERMARKETS INC., DOING BUSINESS AS ATTICA JUBILEE, BNR-LARSON, LLC, DOING BUSINESS AS CORFU IGA, AND GIFT EXPRESS OF NEW YORK, INC., DOING BUSINESS AS THE MARKET IN THE SQUARE, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED AS THEY, AS FORMER EMPLOYEE MEMBERS/PARTICIPANTS IN THE WHOLESALE AND RETAIL WORKERS’ COMPENSATION TRUST OF NEW YORK, PLAINTIFFS-RESPONDENTS-APPELLANTS, V COMPENSATION RISK MANAGERS, LLC, DEFENDANT-APPELLANT-RESPONDENT. (APPEAL NO. 1.) HITCHCOCK & CUMMINGS, LLP, NEW YORK CITY (CHRISTOPHER B. HITCHCOCK OF COUNSEL), AND CONNORS & VILARDO, LLP, BUFFALO, FOR DEFENDANT-APPELLANT-RESPONDENT. PHILLIPS LYTLE LLP, BUFFALO (KENNETH A. MANNING OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS. Appeal and cross appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered August 4, 2009 in a breach of contract action. The order, among other things, granted in part defendant’s motion to dismiss plaintiffs’ supplemental and amended complaint. It is hereby ORDERED that said appeal is unanimously dismissed without costs as moot (see Baker v 16 Sutton Place Apt. Corp., 2 AD3d 119, 120) and the cross appeal is dismissed without costs as abandoned -2- 257 CA 10-01068 (see Restey v Higgins, 252 AD2d 954). Entered: March 25, 2011 Patricia L. Morgan Clerk of the Court