Opinion
July 16, 1993
Appeal from the Erie County Court, Rogowski, J.
Present — Denman, P.J., Pine, Balio, Doerr and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: The order of City Court granting plaintiffs judgment on the issue of liability was dispositive of the rights of the parties (CPLR 5011) and therefore was tantamount to a judgment (see, Highlands Ins. Co. v. Maddena Constr. Co., 109 A.D.2d 1071; see also, Ellingsworth v City of Watertown, 113 A.D.2d 1013). Thus, we exercise jurisdiction over this appeal pursuant to CPLR 5703 (b). On the merits, County Court properly affirmed that order of City Court because defendant Westinghouse Electric Corporation (Westinghouse) never moved to vacate the self-executing prior order of City Court, which struck Westinghouse's answer if Westinghouse failed to comply with discovery demands within 30 days of service of the order. The record includes an affidavit of mailing dated November 13, 1990, the same date the order was signed. The assertion that the order was not received is insufficient to raise a question of fact whether proper service was made (see, Engel v. Lichterman, 62 N.Y.2d 943). Allegations made for the first time on this appeal cannot be considered. Thus, the answer was struck and that prior order has not been vacated. In the absence of an answer, default judgment on liability was proper.