955 SENECA LLC v. KINGS JUICE BAR INC (2025)

ORDERED that the appeal is dismissed.

A final judgment awarding landlord possession in this commercial nonpayment proceeding was entered on April 25, 2024, pursuant to an April 24, 2024 order of the Civil Court (John C.V. Katsanos, J.) granting a motion by landlord to strike tenant's defenses and counterclaims, and for a final judgment. Since the record demonstrates that the Civil Court rejected tenant's opposition papers as untimely, landlord's motion was, in effect, granted on tenant's default in opposing it (cf. Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695 [2014]). “No appeal lies from an order or judgment granted upon the default of the aggrieved party. This rule applies as well to judgments entered pursuant to orders granted upon default” (Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588, 588 [1986] [citations omitted]; see CPLR 5511; Proano v Gutman, 211 AD3d 978, 980 [2022]; HCA Equip. Fin., LLC v Mastrantone, 118 AD3d 850, 851 [2014]). As tenant has not raised any issue that was the subject of contest below, the appeal must be dismissed (see HSBC Bank USA, N.A. v Epstein, 199 AD3d 790 [2021]). Tenant's “remedy under these circumstances is not an appeal but a motion to vacate the judgment pursuant to CPLR 5015” (id. at 790).

Accordingly, the appeal is dismissed.

OTTLEY, J.P., TOUSSAINT and MUNDY, JJ., concur.