Pigler v. Adam, Meldrum & Anderson Co.

Appellate Division of the Supreme Court of New York

Pigler v. Adam, Meldrum & Anderson Co.

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

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

DecidedJuly 16, 1993

StatusPublished

Cited by7 cases

This text of 195 A.D.2d 1011 (Pigler v. Adam, Meldrum & Anderson Co.) 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

Pigler v. Adam, Meldrum & Anderson Co., 195 A.D.2d 1011, 602 N.Y.S.2d 572, 1993 N.Y. App. Div. LEXIS 7814 (N.Y. Ct. App. 1993).

Pincite

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). [1012]*1012Allegations 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.

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—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). [1012]*1012Allegations 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.

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Bluebook (online)

195 A.D.2d 1011, 602 N.Y.S.2d 572, 1993 N.Y. App. Div. LEXIS 7814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pigler-v-adam-meldrum-anderson-co-nyappdiv-1993.

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