

Liberty Community Assoc., LP v DeClemente (2016 NY Slip Op 03960)





Liberty Community Assoc., LP v DeClemente


2016 NY Slip Op 03960


Decided on May 19, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 19, 2016

Sweeny, J.P., Renwick, Andrias, Kapnick, Kahn, JJ.


1183 156532/14

[*1]Liberty Community Associates, LP, Plaintiff-Respondent,
vJoseph DeClemente, Defendant-Appellant.


Law Office of Thomas R. Ashley, Brooklyn (Thomas S. Mirigliano of counsel), for appellant.
Ganfer & Shore, LLP, New York (William D. McCracken of counsel), for respondent.

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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 19, 2016
CLERK


