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Sackett v. Estate of Konigsberg

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


June 1, 2010

EVELYN SACKETT, APPELLANT,
v.
ESTATE OF ALVIN KONIGSBERG, ET AL., RESPONDENTS.

In an action to recover damages for sexual harassment and retaliatory discharge in violation of Administrative Code of the City of New York § 8-107, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated March 17, 2008, and (2) a judgment of the same court (Ambrosio, J.), dated December 18, 2008, which, upon the granting of the defendants' motion pursuant to CPLR 3025 to strike the amended complaint, and the granting of the defendants' oral application, made at the close of the plaintiff's evidence, pursuant to CPLR 4401 for judgment as a matter of law, dismissed the complaint.

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.

MARK C. DILLON, J.P., FRED T. SANTUCCI, L. PRISCILLA HALL and PLUMMER E. LOTT, JJ.

(Index No. 7816/06)

DECISION & ORDER

ORDERED that the appeal from the order dated March 17, 2008, is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

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

Contrary to the plaintiff's contention, the Supreme Court properly granted the defendants' motion to strike the amended complaint based upon her failure to comply with CPLR 3025. The record indicates that the plaintiff served her amended complaint well beyond the period within which an amended pleading may be served as of right (see CPLR 3025[a]) without first obtaining leave of the court or the stipulation of the parties (see Nikolic v Federation Empl. & Guidance Serv., Inc., 18 AD3d 522, 524).

The appeal from the order dated March 17, 2008, must be dismissed as abandoned, as the plaintiff does not seek in her brief reversal or modification of any portion of the order (see Sirma v Beach, 59 AD3d 611, 614; Bibas v Bibas, 58 AD3d 586, 587).

The plaintiff's remaining contentions are without merit.

DILLON, J.P., SANTUCCI, HALL and LOTT, JJ., concur.

20100601

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