Sitt v Sitt

Sitt v Sitt 2021 NY Slip Op 06785 Decided on December 02, 2021 Appellate Division, First Department 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.

Decided and Entered: December 02, 2021
Before: Webber, J.P., Friedman, Oing, Shulman, Pitt, JJ.
Index No. 653579/14 Appeal No. 14728 Case No. 2020-04275

[*1]Jack Sitt, Individually and on Behalf of Sitt Asset Management, LLC, et al., Plaintiff-Appellant,

v

Ralph Sitt et al., Defendants-Respondents, Sitt Asset Management, LLC, et al., Defendants.

Law Offices of Robert M. Kaplan, White Plains (Robert M. Kaplan of counsel), for appellant.

Meister Selig Fein LLP, New York (Stacey M. Ashby of counsel), for respondents.

Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about October 7, 2020, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the parts of plaintiff's first, second, and sixth causes of action insofar as they pertain to defendant 6 Times Square Member LLC, unanimously affirmed, with costs.

Plaintiff expressly abandoned the claims at issue, on the record, in open court, and in a submission required by the court in the on-going motion practice. As such, his claims are unreviewable (see People v Caldwell , 245 AD2d 89 [1st Dept 1997]).

Nor did the court impermissibly search the record on a CPLR 3211 motion. The motion had been converted to one for summary judgment.

Moreover, contrary to plaintiff's contention, defendants expressly moved to dismiss all causes of action, based on plaintiff's unrebutted failure to participate in discovery and his failure to prosecute the action for an additional two years thereafter.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 2, 2021