FRENCH v. NYS DEPARTMENT OF LABOR (2024)

Appeal from order, Supreme Court, New York County (Gerald Lebovitz, J.), entered on or about February 6, 2024, which, upon plaintiff's default, granted defendants NYS Department of Labor and T.D. Bank Inc.’s motions to dismiss, unanimously dismissed, without costs, as taken from a nonappealable order.

Plaintiff's failure to submit timely opposition papers to defendants’ motions to dismiss, or obtain permission to submit late opposition, constituted a default on the motions for which her remedy is not an appeal but a motion to vacate (see CPLR 5511;  Shannon v. City of New York, 275 A.D.2d 671, 713 N.Y.S.2d 858 [1st Dept. 2000];  Helm v. PHH Mtge. Corp., 193 A.D.3d 420, 420, 147 N.Y.S.3d 1 [1st Dept. 2021]).

We reject plaintiff's argument that her belated filing of an amended complaint before the court issued its decision mooted the pending motions to dismiss.  The amended complaint did not “automatically abate” the motions addressed to the original complaint (Fownes Bros. & Co., Inc. v. JPMorgan Chase & Co., 92 A.D.3d 582, 582, 939 N.Y.S.2d 367 [1st Dept. 2012] [internal quotation marks and brackets omitted];  see also Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38, 675 N.Y.S.2d 14 [1st Dept. 1998]).  Plaintiff had already defaulted when she submitted the amended complaint just a day before the court issued its decision.  Accordingly, the court properly directed the motions toward the original complaint (see Fownes Bros. & Co., 92 A.D.3d at 582, 939 N.Y.S.2d 367).