SALJOOKI ENTERPRISES INC v. Anthony F. Lodati, nonparty-appellant. (2025)

DECISION & ORDER

In an action, inter alia, for repayment of a loan, the defendant and nonparty Anthony F. Lodati appeal from an order of the Supreme Court, Nassau County (Diccia T. Pineda–Kirwan, J.), dated September 30, 2022.  The order, insofar as appealed from, granted the plaintiffs’ motion for leave to amend the complaint to add nonparty Anthony F. Lodati as a defendant and denied that branch of the defendant's cross-motion which was for summary judgment dismissing the complaint.

ORDERED that the appeal by nonparty Anthony F. Lodati is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511);  and it is further,

ORDERED that the appeal by the defendant from so much of the order as granted the plaintiffs’ motion for leave to amend the complaint to add nonparty Anthony F. Lodati as a defendant is dismissed, as the defendant is not aggrieved by that portion of the order (see CPLR 5511);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiffs commenced this action against the defendant alleging, inter alia, that the defendant failed to repay a $120,000 unsecured loan that was due on demand.  During discovery, the defendant and his son, nonparty Anthony F. Lodati (hereinafter Lodati, Jr.), both testified at their respective depositions that the defendant did not take a check or deposit funds.  Instead, Lodati, Jr., testified that he took the check and deposited the funds into his own personal account.  The plaintiffs thereafter moved for leave to amend the complaint to add Lodati, Jr., as a defendant.  The defendant cross-moved, among other things, for summary judgment dismissing the complaint on the ground that the alleged loan was usurious.  In an order dated September 30, 2022, the Supreme Court, inter alia, granted the plaintiffs’ motion and denied that branch of the defendant's cross-motion.  The defendant and Lodati, Jr., appeal.

The appeal by Lodati, Jr., must be dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511).

The appeal by the defendant from so much of the order as granted the plaintiffs’ motion for leave to amend the complaint to add Lodati, Jr., as a defendant must be dismissed, as the defendant is not aggrieved by that portion of the order (see CPLR 5511;  Pagan v. Jordan, 163 A.D.3d 978, 979, 82 N.Y.S.3d 132).

The Supreme Court properly denied that branch of the defendant's cross-motion which was for summary judgment dismissing the complaint on the ground that the alleged loan was usurious.  The defendant failed to establish, prima facie, that the alleged loan was usurious (see Zanfini v. Chandler, 197 A.D.3d 594, 595, 153 N.Y.S.3d 77).

Accordingly, we affirm the order insofar as reviewed.

DILLON, J.P., GENOVESI, LANDICINO and MCCORMACK, JJ., concur.