MASONE v. T.R. Plumbing, Inc., Defendant-Respondent. (2001)

Supreme Court, Appellate Division, First Department, New York.

Thomas MASONE, Plaintiff-Appellant, v. NEW YORK CITY HOUSING AUTHORITY, et al., Defendants, T.R. Plumbing, Inc., Defendant-Respondent.

Decided: January 16, 2001

NARDELLI, J.P., TOM, MAZZARELLI and ELLERIN, JJ.

Michael I. Josephs, for Plaintiff-Appellant. Mauro Goldberg & Lilling LLP (Kenneth Mauro, Christopher Simone, Katherine Herr Solomon) for Defendant-Respondent.

Appeal from order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about November 24, 1999, which, insofar as appealed from, granted, on default, defendant-respondent's motion for summary judgment dismissing the complaint as against it, unanimously dismissed, without costs.

The motion court's refusal to consider plaintiff's opposition papers served after the date fixed for their receipt in a written stipulation (CPLR 2214 [c]) constituted a finding of default on the motion, for which plaintiff's remedy is not an appeal but a motion to vacate the default (CPLR 5511; Shannon v. City of New York, 275 A.D.2d 671, 713 N.Y.S.2d 858). Hence, the appeal is dismissed. Since plaintiff's opposition papers appeared to have merit, we grant leave, sua sponte, to plaintiff to move to vacate the default within 30 days of the date of this order.

MEMORANDUM DECISION.

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