Reset A A Font size: Print

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

Juana SANCHEZ, appellant, v. Juan RIVERA, respondent, et al., defendants.


Decided: April 10, 2019

JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ. Zemsky & Salomon, P.C. (The Altman Law Firm, PLLC, Woodmere, N.Y. [Michael T. Altman], of counsel), for appellant. Buratti, Rothenberg & Burns, Melville, N.Y. (Alan M. Shushan and Veronica Rozo of counsel), for respondent.


ORDERED that the appeals are dismissed, with one bill of costs.

On December 10, 2015, the parties were involved in a three-vehicle accident.  Prior to the accident, the defendant Ixa Ulloa–Gutierrez was operating a vehicle owned by the defendant Robert C. Gutierrez Gutierrez (hereinafter together the Gutierrez defendants) on Middle Country Road in Suffolk County.  The Gutierrez vehicle was struck by a vehicle owned and operated by the defendant Juan Rivera, which had been traveling in the opposite direction on Middle Country Road, when Rivera's vehicle attempted to make a left turn across the lane in which the Gutierrez vehicle had been traveling.  After the impact between those two vehicles, the plaintiff's vehicle, which had been traveling directly behind the Gutierrez vehicle, struck the Gutierrez vehicle, which had come to a stop, in the rear.

The plaintiff commenced this action against the defendants to recover damages for personal injuries.  After joinder of issue, the Gutierrez defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and Rivera cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.  The plaintiff failed to submit papers to the Supreme Court in opposition to either the motion or the cross motion.  By order dated August 28, 2017, the court granted the motion and the cross motion upon the plaintiff's default in submitting opposition.  The plaintiff subsequently moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order dated August 28, 2017.  By order dated October 2, 2017, the court denied the plaintiff's motion.

No appeal lies from an order or judgment entered upon the default of the appealing party (see CPLR 5511;  Alvarez v. Jawaid, 163 A.D.3d 746, 747, 81 N.Y.S.3d 591).  Here, since the portion of the order dated August 28, 2017, appealed from was entered upon the plaintiff's failure to oppose Rivera's cross motion, the appeal from that order must be dismissed (see Gitzis v. Isakov, 150 A.D.3d 1085, 52 N.Y.S.3d 659;  T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp., 139 A.D.3d 1038, 1039, 30 N.Y.S.3d 839;  Reynolds v. Haiduk, 120 A.D.3d 656, 990 N.Y.S.2d 873).

The plaintiff's appeal from the order dated October 2, 2017, must be dismissed as abandoned, as the brief filed by the plaintiff does not seek reversal or modification of any portion of that order (see Landstein v. Town of LaGrange, 166 A.D.3d 100, 107, 86 N.Y.S.3d 155;  Barrett v. Dennis Lounsbury Bldrs., Inc., 135 A.D.3d 796, 796, 22 N.Y.S.3d 894;  Cremosa Food Co., LLC v. Amella, 130 A.D.3d 559, 560, 12 N.Y.S.3d 293).


Copied to clipboard