Moore v. Federated Department Stores, Inc.

Appellate Division of the Supreme Court of New York

Moore v. Federated Department Stores, Inc.

94 A.D.3d 638, 942 N.Y.S.2d 513

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 2012

StatusPublished

Cited by13 cases

This text of 94 A.D.3d 638 (Moore v. Federated Department Stores, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moore v. Federated Department Stores, Inc., 94 A.D.3d 638, 942 N.Y.S.2d 513 (N.Y. Ct. App. 2012).

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Opinion

Appeal from order, Supreme Court, New York County (Martin Shulman, J.), entered July 16, 2010, which, to the extent appealed from as limited by the briefs, denied plaintiffs motions to strike defendants’ answer and to compel responses to discovery, and granted defendants’ cross motions for sanctions to the extent of directing plaintiffs counsel to, among other things, pay $2,000 to the Lawyer’s Fund for Client Protection, unanimously dismissed, without costs. Appeal from order, same court and Justice, entered on or about September 27, 2010, which, to the extent appealed from, granted defendant Macy’s motion to compel [639]*639plaintiffs compliance with discovery, and denied plaintiffs motion to stay the order entered July 16, 2010 pending appeal, unanimously dismissed, without costs.

Any right of direct appeal from the intermediate orders terminated with entry of the final judgment dismissing this wrongful termination action for failure to prosecute (see Matter of Aho, 39 NY2d 241, 248 [1976]). Plaintiff did not appeal from the final judgment, and there is no basis for deeming his appeals from the intermediate orders as having been taken from the subsequent judgment (cf. CPLR 5501 [c]; 5520 [c]).

Were we to consider plaintiffs arguments on appeal, we would nonetheless find them unavailing. The court properly denied plaintiffs motions to strike and compel, as there was no basis in the record to find defendants’ conduct in the discovery process to be willful, contumacious, or in bad faith (see Ayala v Lincoln Med. & Mental Health Ctr., 92 AD3d 542 [2012]). With respect to the court’s imposition of sanctions upon plaintiffs counsel, counsel did not appeal from the order or the subsequent judgment awarding sanctions, and plaintiff was not aggrieved by the award and lacks standing to challenge it (see generally CPLR 5511; Matter of Kyle v Lebovits, 58 AD3d 521 [2009], lv dismissed and denied 13 NY3d 765 [2009], cert denied 559 US —, 130 S Ct 1524 [2010]). Plaintiff was also not aggrieved by the grant of defendant Macy’s motion to compel discovery, as plaintiff did not oppose the motion (see Darras v Romans, 85 AD3d 710, 711 [2011]). To the extent plaintiff challenges the denial of his motion for a stay of enforcement of the order entered July 16, 2010 pending his appeal from the order, his argument is moot (see Diane v Ricale Taxi, Inc., 26 AD3d 232, 232 [2006]). Concur — Tom, J.P., Friedman, Catterson, Acosta and Freedman, JJ. [Prior Case History: 2010 NY Slip Op 31899(U).]

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Appeal from order, Supreme Court, New York County (Martin Shulman, J.), entered July 16, 2010, which, to the extent appealed from as limited by the briefs, denied plaintiffs motions to strike defendants’ answer and to compel responses to discovery, and granted defendants’ cross motions for sanctions to the extent of directing plaintiffs counsel to, among other things, pay $2,000 to the Lawyer’s Fund for Client Protection, unanimously dismissed, without costs. Appeal from order, same court and Justice, entered on or about September 27, 2010, which, to the extent appealed from, granted defendant Macy’s motion to compel [639]*639plaintiffs compliance with discovery, and denied plaintiffs motion to stay the order entered July 16, 2010 pending appeal, unanimously dismissed, without costs.

Any right of direct appeal from the intermediate orders terminated with entry of the final judgment dismissing this wrongful termination action for failure to prosecute (see Matter of Aho, 39 NY2d 241, 248 [1976]). Plaintiff did not appeal from the final judgment, and there is no basis for deeming his appeals from the intermediate orders as having been taken from the subsequent judgment (cf. CPLR 5501 [c]; 5520 [c]).

Were we to consider plaintiffs arguments on appeal, we would nonetheless find them unavailing. The court properly denied plaintiffs motions to strike and compel, as there was no basis in the record to find defendants’ conduct in the discovery process to be willful, contumacious, or in bad faith (see Ayala v Lincoln Med. & Mental Health Ctr., 92 AD3d 542 [2012]). With respect to the court’s imposition of sanctions upon plaintiffs counsel, counsel did not appeal from the order or the subsequent judgment awarding sanctions, and plaintiff was not aggrieved by the award and lacks standing to challenge it (see generally CPLR 5511; Matter of Kyle v Lebovits, 58 AD3d 521 [2009], lv dismissed and denied 13 NY3d 765 [2009], cert denied 559 US —, 130 S Ct 1524 [2010]). Plaintiff was also not aggrieved by the grant of defendant Macy’s motion to compel discovery, as plaintiff did not oppose the motion (see Darras v Romans, 85 AD3d 710, 711 [2011]). To the extent plaintiff challenges the denial of his motion for a stay of enforcement of the order entered July 16, 2010 pending his appeal from the order, his argument is moot (see Diane v Ricale Taxi, Inc., 26 AD3d 232, 232 [2006]). Concur — Tom, J.P., Friedman, Catterson, Acosta and Freedman, JJ. [Prior Case History: 2010 NY Slip Op 31899(U).]

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Bluebook (online)

94 A.D.3d 638, 942 N.Y.S.2d 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-federated-department-stores-inc-nyappdiv-2012.

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