BROOKS v. MAINTENANCE SERV

Ordered that the appeal from the order dated December 23, 2004 is dismissed, without costs or disbursements, as that order was superseded by the amended order dated January 24, 2005; and it is further,

Ordered that the appeals and cross appeal from the amended order dated January 24, 2005 are dismissed as academic, without costs or disbursements, in light of our determination of an appeal and cross appeal from an interlocutory judgment of the Supreme Court, Kings County, dated June 28, 2005 ( see Brooks v Maintenance Serv. Resources, Inc., 44 AD3d 887 [decided herewith]).

Fisher, J. (concurring to dismiss the appeal from the order dated December 23, 2004, on the ground that that order was superseded by the amended order dated January 24, 2005, and to dismiss the appeals and cross appeal from the amended order dated January 24, 2005, as academic):

In light of my dissent from this Court's determination of an appeal and cross appeals from an order of the Supreme Court, Kings County, dated February 10, 2006 ( see Brooks v Maintenance Serv. Resources, Inc., 44 AD3d 892 [decided herewith]), I concur to dismiss the appeal from the order dated December 23, 2004, on the ground that that order was superseded by the amended order dated January 24, 2005, and to dismiss the appeals and cross appeal from the amended order dated January 24, 2005, as academic, as there should be a new trial on damages.