BATISTA v. BURGOS (2026)

Appeals from order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about May 10, 2024, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on the issue of liability and for sanctions based on defendants’ willful failure to disclose evidence, and denied defendants’ cross-motion for summary judgment dismissing the complaint, unanimously dismissed, without costs, as nonappealable.

“With the entry of a final judgment, an appeal from an intermediate order must fall, and the order can only be reviewed on an appeal from the final judgment if it affects the final judgment” (Dietz Intl. Pub. Adjusters v. Frankart Distribs., 157 A.D.2d 625, 551 N.Y.S.2d 776 [1st Dept. 1990] [internal quotation marks and brackets omitted];  Hill Dickinson LLP v. Il Sole Ltd., 149 A.D.3d 471, 471, 49 N.Y.S.3d 888 [1st Dept. 2017];  see also CPLR 5501).

Here, a final judgment dismissing the complaint was entered on September 30, 2025, pursuant to an order dated August 25, 2025, which granted defendants’ CPLR 3126 motion to strike plaintiff's complaint for her “willful refusal to appear for her deposition and physical examination in violation of numerous prior court orders,” and which directed the Clerk to dismiss the action.  Judgment was entered after the instant appeals from the interlocutory order entered on or about May 10, 2024.  Thus, the right to appeal from this order terminated with entry of the final judgment.  Plaintiff has not appealed from the final judgment, and that failure is jurisdictionally fatal.