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 A.D.2d 258, 259; 735 N.Y.S.2d 527, 527-528; Gen. Elec. Co. v. Rabin, 177 A.D.2d 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 A.D.2d 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 N.Y.2d 939, 940).
The motion court properly refused to award sanctions against plaintiff.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.