Fidata Trust Co. Massachusetts v. Leahy Business Archives, Inc.

Appeal from order, Supreme Court, New York County (Burton S. Sherman, J.), entered January 31, 1991, which granted defendant’s motion for summary judgment on damages only to the extent of directing the plaintiff to serve a response to defen 271 dant’s notice of discovery and inspection, dismissed as moot, with costs. The order on appeal was subsequently vacated and thus rendered moot. The defendant is no longer an aggrieved party (see, CPLR 5511; cf., 100 Hudson Tenants Corp. v Laber, 98 AD2d 692), and accordingly the appeal should be dismissed. In any event, this Court’s previous order of affirmance on the issue of liability impliedly held that the issue of damages was to be tried after defendant had an opportunity to conduct discovery with respect to that issue [173 AD2d 424]. Defendant chose not to do so, and plaintiffs right to damages has become the law of the case (cf., Martin v City of Cohoes, 37 NY2d 162, 165). Plaintiff, as bailor, has established a prima facie case sufficient to rebut any limitation on liability for loss of goods (I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657, 665, 667-668). Concur—Carro, J. P., Ellerin, Kupferman, Kassal and Rubin, JJ.