| Cherubin Antiques, Inc. v Matiash |
| 2013 NY Slip Op 03449 [106 AD3d 861] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Cherubin Antiques, Inc., Plaintiff, and Lenore Malvasio etal., Appellants, v Mark Matiash, Respondent, et al.,Defendants. |
—[*1] Kaufman, Borgeest & Ryan LLP, New York, N.Y. (Kristopher M. Dennis ofcounsel), for respondent.
In an action, inter alia, to recover damages for fraud, the plaintiff Kathleen Calabrettaappeals (1) from certain portions of an order of the Supreme Court, Nassau County(Feinman, J.), dated February 18, 2011, (2) from certain portions of an order of the samecourt, also dated February 18, 2011, and (3), as limited by her brief, from so much of anorder of the same court dated March 4, 2011, as denied her motion, made jointly with theplaintiff Lenore Malvasio, in effect, to treat the answer of the defendant Mark Matiash asa nullity pursuant to CPLR 3022, and granted that branch of the cross motion of thedefendant Mark Matiash which was pursuant to CPLR 3126 to dismiss the complaintinsofar as asserted against him by the plaintiff Kathleen Calabretta, and the plaintiffLenore Malvasio also appeals from the same three orders.
Ordered that the appeals by the plaintiff Lenore Malvasio are dismissed asabandoned for the failure to perfect the same in accordance with the rules of this Court(see 22 NYCRR 670.8 [c], [e]); and it is further,
Ordered that the appeals by the plaintiff Kathleen Calabretta from the two ordersdated February 18, 2011, are dismissed as abandoned; and it is further,
Ordered that the order dated March 4, 2011, is affirmed insofar as appealed from bythe plaintiff Kathleen Calabretta; and it is further,
Ordered that one bill of costs is awarded to the defendant Mark Matiash, payable bythe plaintiff Kathleen Calabretta.
The appeals by the plaintiff Kathleen Calabretta from the two orders dated February18, 2011, must be dismissed as abandoned (see Sirma v Beach, 59 AD3d 611, 614 [2009]), as the brieffiled by that plaintiff does not seek reversal or modification of any portion of thoseorders.[*2]
A party must "give[ ] notice with due diligence"that he or she intends to treat a pleading as a nullity pursuant to CPLR 3022 on theground that the pleading was served with an insufficient verification (CPLR 3022;see Matter of Liberty Mut. Ins. Co. v Bohl, 262 AD2d 645, 647 [1999]). Here,the plaintiff Kathleen Calabretta waived any claim that the verification accompanying theanswer of the defendant Mark Matiash was defective by waiting approximately eightmonths after the answer was filed to object to it (see CPLR 3022; Matter ofLiberty Mut. Ins. Co. v Bohl, 262 AD2d at 647; Matter of Lentlie v Egan, 94AD2d 839, 840 [1983], affd 61 NY2d 874 [1984]; see also Siegel, NYPrac § 235 at 407 [5th ed 2011]).
Moreover, under the circumstances of this case, the Supreme Court did notimprovidently exercise its discretion in granting that branch of Matiash's cross motionwhich was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted againsthim by Calabretta based on her willful failure to respond to Matiash's discovery requests(see CPLR 3126 [3]; Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d1066, 1066-1067 [2012]; Batshever v Jafar, 73 AD3d 1108, 1108-1109 [2010]).Skelos, J.P., Angiolillo, Roman and Cohen, JJ., concur.