Opinion
131 CA 19-01532
07-17-2020
Osvaldo GARCIA, Plaintiff-Appellant, v. TOWN OF TONAWANDA, Defendant-Respondent, et al., Defendants.
CAMPBELL & ASSOCIATES, EDEN (JOHN T. RYAN OF COUNSEL), FOR PLAINTIFF-APPELLANT. COLUCCI & GALLAHER, P.C., BUFFALO (MARC SMITH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
CAMPBELL & ASSOCIATES, EDEN (JOHN T. RYAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
COLUCCI & GALLAHER, P.C., BUFFALO (MARC SMITH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs. Memorandum: Plaintiff appeals from an order insofar as it denied his motion seeking to strike the answer of defendant Town of Tonawanda (Town) in the event that the Town failed to produce certain requested discovery materials within 30 days. After entry of that order and while this appeal was pending, Supreme Court granted the Town's subsequent motion for summary judgment dismissing the complaint against it. The court's order granting summary judgment, however, is not before us on this appeal (cf. Buffamante Whipple Buttafaro, Certified Public Accountants, P.C. v. Dawson , 118 A.D.3d 1283, 1284, 988 N.Y.S.2d 341 [4th Dept. 2014] ). Because the court granted the Town's motion and dismissed the complaint against it, plaintiff's appeal is moot (see generally Burke v. City of Rochester, 158 A.D.3d 1218, 1219, 70 N.Y.S.3d 271 [4th Dept. 2018] ; Douglas Smith Fabrication & Repair v. Gasthaus , 259 A.D.2d 515, 515, 686 N.Y.S.2d 453 [2d Dept. 1999] ).