Pigler v. Adam, Meldrum & Anderson Co.

195 A.D.2d 1011, 602 N.Y.S.2d 572, 1993 N.Y. App. Div. LEXIS 7814

Opinion

—Order unanimously affirmed with costs. Memorandum: The order of City Court granting plaintiffs judgment on the issue of liability was dispositive of the rights of the parties (CPLR 5011) and therefore was tantamount to a judgment (see, Highlands Ins. Co. v Maddena Constr. Co., 109 AD2d 1071; see also, Ellingsworth v City of Watertown, 113 AD2d 1013). Thus, we exercise jurisdiction over this appeal pursuant to CPLR 5703 (b). On the merits, County Court properly affirmed that order of City Court because defendant Westinghouse Electric Corporation (Westinghouse) never moved to vacate the self-executing prior order of City Court, which struck Westinghouse’s answer if Westinghouse failed to comply with discovery demands within 30 days of service of the order. The record includes an affidavit of mailing dated November 13, 1990, the same date the order was signed. The assertion that the order was not received is insufficient to raise a question of fact whether proper service was made (see, Engel v Lichterman, 62 NY2d 943). Allegations made for the first time on this appeal cannot be considered. Thus, the answer was struck and that prior order has not been vacated. In the absence of an answer, default judgment on liability was proper. (Appeal from Order of Erie County Court, Rogowski, J.—Default Judgment.) Present— Denman, P. J., Pine, Balio, Doerr and Davis, JJ.