HU v. LEI (2024)

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the plaintiffs appeal from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered April 5, 2023.  The order granted the, in effect, unopposed motion of the defendants pursuant to CPLR 3211(a)(2) to dismiss the complaint.

ORDERED that the appeal is dismissed, with costs to the defendants.

The plaintiffs commenced this action, inter alia, to recover damages for negligence.  The defendants thereafter moved pursuant to CPLR 3211(a)(2) to dismiss the complaint.  The plaintiffs served their opposition to the motion one day prior to the adjourned return date, and the defendants, in effect, rejected it as untimely, asserting to the Supreme Court that the opposition should not be considered and that their motion should be submitted as unopposed.  In an order entered April 5, 2023, the court determined that the opposition papers were untimely and expressly declined to consider them and granted the defendants' motion.  The plaintiffs appeal.

The Supreme Court's order was, in effect, entered upon the plaintiffs' default, and they did not move to vacate their default (see Vassiliou–Sideris v. Nautilus, Inc., 186 A.D.3d 1756, 1757–1758, 129 N.Y.S.3d 796).  On appeal, the plaintiffs do not contend that the court erred in declining to consider their opposition papers.  The plaintiffs only argue, on the merits, that the defendants' motion was improperly granted.  Since, pursuant to CPLR 5511, no appeal lies from an order or judgment granted upon the default of the appealing party, the plaintiffs are not entitled to review of the order appealed from.  Thus, this appeal must be dismissed (see Palmer v. Cadman Plaza N., Inc., 215 A.D.3d 759, 761, 185 N.Y.S.3d 689;  Vassiliou–Sideris v. Nautilus, Inc., 186 A.D.3d at 1758, 129 N.Y.S.3d 796).

IANNACCI, J.P., WOOTEN, GENOVESI and VENTURA, JJ., concur.