Liberty Community Associates, LP v. DeClemente

139 A.D.3d 532, 30 N.Y.S.3d 550

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 2016
• Docket: 1183 156532/14
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County (Debra A. James, J.), entered on or about April 20, 2015, which, among other things, granted plaintiff’s motion for discovery sanctions to the extent of striking defendant’s answer, directed entry of judgment in plaintiff’s favor in the sum of $55,000, plus interest, and denied defendant’s cross motion to dismiss the complaint on the ground of forum non conveniens, unanimously dismissed, with costs.

Because defendant failed to respond to plaintiff’s motion for discovery sanctions, the part of the order striking defendant’s answer as a discovery sanction and granting judgment in plaintiff’s favor, thereby disposing of the case, was entered on defendant’s default, and is not appealable (see CPLR 5511; Figiel v Met Food, 48 AD3d 330 [1st Dept 2008]).

Given the foregoing determination, defendant’s appeal from the denial of his cross motion to dismiss the action on forum non conveniens grounds is moot.

Concur — Sweeny, J.P., Renwick, Andrias, Kapnick and Kahn, JJ.