CHELSEA GROUP LLC v. ENGINEERING AND LAND SURVEYING (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Michael G. Hayes, J.), dated August 7, 2024.  The order, insofar as appealed from, upon a prior order of the same court dated February 7, 2024, granted that branch of the application of the defendant K.C. Engineering and Land Surveying, P.C., which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it and granted, without opposition, the motion of the defendant Village Construction Co., Inc., pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it.

ORDERED that the appeal is dismissed, with one bill of costs to the respondents.

In a prior order dated February 7, 2024, the Supreme Court granted the defendant K.C. Engineering and Land Surveying, P.C. (hereinafter K.C.), a conditional order of preclusion.  No appeal was taken from the conditional order of preclusion, which the plaintiff has omitted from the record on appeal.  On March 27, 2024, K.C. made an application, among other things, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it on the ground that the plaintiff did not comply with the conditional order of preclusion, which became absolute.  The defendant Village Construction Co., Inc. (hereinafter Village), moved pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it.  In an order dated August 7, 2024, the court, inter alia, granted that branch of K.C.'s application and granted, without opposition, Village's motion.

The appeal from so much of the order dated August 7, 2024, as granted that branch of K.C.'s application which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it on the ground that the plaintiff did not comply with the conditional order of preclusion must be dismissed, because that portion of the order did not decide a motion made on notice (see CPLR 5701[a][2] ), and leave to appeal from that portion of the order has not been granted (see id. § 5701[c];  Gorbatov v. Tsirelman, 206 A.D.3d 887, 887, 170 N.Y.S.3d 591).

The appeal from so much of the order dated August 7, 2024, as granted, without opposition, Village's motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it must be dismissed, because no appeal lies from an order entered upon the default of the appealing party (see id. § 5511).

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.