Gross v. Johnson

• Decision Date: 30 January 2013
• Citation: 2013 N.Y. Slip Op. 00456,958 N.Y.S.2d 751,102 A.D.3d 921
• Parties: Jeffrey GROSS, respondent, v. Rebekah JOHNSON, appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 921
958 N.Y.S.2d 751
2013 N.Y. Slip Op. 00456

Jeffrey GROSS, respondent,
v.
Rebekah JOHNSON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 30, 2013.

[958 N.Y.S.2d 752]

Higgins & Trippett LLP, New York, N.Y. (Lewis P. Trippett of counsel), for appellant.

Howard M. File, Esq., P.C., Staten Island, N.Y., for respondent.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

[102 A.D.3d 921]In an action to recover damages for battery and intentional infliction of emotional distress, the defendant appeals (1) from an order of the Supreme Court, Richmond County (Fusco, J.), dated September 3, 2010, which, inter alia, conditionally granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer unless she appeared for a deposition by a date certain, (2) from an order of the same court dated January 7, 2011, which granted the plaintiff's unopposed application to strike the answer for failure to comply with the order dated September 3, 2010, (3) from a judgment of the same court entered November 15, 2011, which, upon the orders, and after an inquest on the issue of damages, is in favor of the plaintiff and against her in the principal sum of $907,849.71, and (4), as limited by her brief, from so much of an order of the same court dated January 24, 2012, as denied her motion to vacate the order dated January 7, 2011, and the judgment.

[102 A.D.3d 922]ORDERED that the appeals from the orders dated September 3, 2010, and January 7, 2011, are dismissed; and it is further,

ORDERED that the order dated January 24, 2012, is reversed insofar as appealed from, on the facts and in the exercise of discretion, the defendant's motion to vacate the order dated January 7, 2011, and the judgment is granted, and the order dated January 7, 2011, and the judgment are vacated; and it is further,

ORDERED that the appeal from the judgment is dismissed as academic in light of our determination of the appeal from the order dated January 24, 2012; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeals from the orders dated September 3, 2010, and January 7, 2011, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). Moreover, we do not review the order dated September 3, 2010, on the appeal from the judgment, since the defendant advances no argument in her brief regarding that order ( see L.D. Wenger Constr. Co., Inc. v. UnBuildIt, Inc., 73 A.D.3d 864, 865, 899 N.Y.S.2d 885;Cambry v. Lincoln Gardens, 50 A.D.3d 1081, 1084, 857 N.Y.S.2d 225;Ellner v. Schwed, 48...