Aetna Casualty & Surety Co. v. Serrano

181 A.D.2d 731

Opinion

— In a proceeding to permanently stay arbitration of a claim for uninsured motorist benefits, Maria Rodriguez Serrano appeals from an order of the Supreme Court, Nassau County (O’Shaughnessy, J.), dated May 17, 1990, which, upon the appellant’s default in submitting opposing papers, granted the petitioner’s motion "for an order enforcing” a prior order of the same court, dated July 24,1989, which granted an application to stay arbitration.

Ordered that the appeal is dismissed, without costs or disbursements.

The petitioner’s motion "for an order enforcing” the order dated July 24, 1989, was returnable February 16, 1990, and contained a demand that answering papers be served five days before the return date (see, CPLR 2214 [b]). However, the answering papers were not served until March 2, 1990. The court refused to consider the untimely papers and granted the petitioner’s motion upon the respondent’s default in opposing the motion. Since no appeal lies from an order entered upon the default of the appealing party, the appeal must be dismissed (see, CPLR 5511; Matter of Mitchell v Morris, 177 AD2d 579; Katz v Katz, 68 AD2d 536). Thompson, J. P., Sullivan, Harwood and Balletta, JJ., concur.