DE LUKE v. Palma Lumber Company, Inc., Respondent. (2007)

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

Peter J. DE LUKE, Appellant, v. ALBANY RESTAURANT SUPPLY, INC., Defendant, Palma Lumber Company, Inc., Respondent.

Decided: July 05, 2007

Before: CARDONA, P.J., CREW III, MUGGLIN, ROSE and LAHTINEN, JJ.

Daniel A. Ehring, Albany, for appellant. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Erica L. Putnam of counsel), for respondent.

Appeal from an order of the Supreme Court (Teresi, J.), entered May 1, 2006 in Albany County, which granted a motion by defendant Palma Lumber Company, Inc. for summary judgment dismissing the complaint against it.

Plaintiff commenced this negligence action alleging that he slipped and fell on snow/ice and injured his back. Following joinder of issue, defendant Palma Lumber Company, Inc. moved for summary judgment dismissing the complaint against it. Plaintiff failed to submit any opposition thereto and Supreme Court, in turn, granted the motion. Plaintiff now appeals.

No appeal lies here inasmuch as the order appealed from was entered upon the default of plaintiff and, as such, it cannot be said that plaintiff has been aggrieved (see Farhadi-Jou v. Key Bank of New York, 2 A.D.3d 1041, 1042, 768 N.Y.S.2d 418 [2003] ). Plaintiff's sole remedy was to make a motion to vacate the order in Supreme Court and, if unsuccessful in that endeavor, appeal to this Court from the order denying that motion (see State Empls. Fed. Credit Union v. Starke, 274 A.D.2d 656, 658, 710 N.Y.S.2d 197 [2000] ). Accordingly, this appeal must be dismissed.

ORDERED that the appeal is dismissed, with costs.

LAHTINEN, J.

CARDONA, P.J., CREW III, MUGGLIN and ROSE, JJ., concur.

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