| Moore v Federated Dept. Stores, Inc. |
| 2012 NY Slip Op 03112 [94 AD3d 638] |
| April 24, 2012 |
| Appellate Division, First Department |
| Dwayne Moore, Appellant, v Federated Department Stores,Inc., et al., Respondents. |
—[*1] McCarter & English, LLP, New York (Richard P. O'Leary of counsel), forrespondents.
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 plaintiff's motions tostrike defendants' answer and to compel responses to discovery, and granted defendants' crossmotions for sanctions to the extent of directing plaintiff's counsel to, among other things, pay$2,000 to the Lawyer's Fund for Client Protection, unanimously dismissed, without costs. Appealfrom order, same court and Justice, entered on or about September 27, 2010, which, to the extentappealed from, granted defendant Macy's motion to compel plaintiff's compliance withdiscovery, and denied plaintiff's 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 finaljudgment dismissing this wrongful termination action for failure to prosecute (see Matter ofAho, 39 NY2d 241, 248 [1976]). Plaintiff did not appeal from the final judgment, and thereis no basis for deeming his appeals from the intermediate orders as having been taken from thesubsequent judgment (cf. CPLR 5501 [c]; 5520 [c]).
Were we to consider plaintiff's arguments on appeal, we would nonetheless find themunavailing. The court properly denied plaintiff's motions to strike and compel, as there was nobasis in the record to find defendants' conduct in the discovery process to be willful,contumacious, or in bad faith (see Ayalav Lincoln Med. & Mental Health Ctr., 92 AD3d 542 [2012]). With respect to the court'simposition of sanctions upon plaintiff's counsel, counsel did not appeal from the order or thesubsequent judgment awarding sanctions, and plaintiff was not aggrieved by the award and lacksstanding to challenge it (see generally CPLR 5511; Matter of Kyle v Lebovits, 58 AD3d 521 [2009], lv dismissedand 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 compeldiscovery, as plaintiff did not oppose the motion (see Darras v Romans, 85 AD3d 710, 711 [2011]). To the extentplaintiff challenges the denial [*2]of his motion for a stay ofenforcement of the order entered July 16, 2010 pending his appeal from the order, his argumentis 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).]