Anil v. Fernandez

267 A.D.2d 187, 699 N.Y.S.2d 300, 1999 N.Y. App. Div. LEXIS 12531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1999
• Status: Published

Opinion

—In an action to set aside a deed and its successor deed upon the ground of forgery, the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated October 1, 1998, which granted the defendants’ motion, inter alia, to dismiss the complaint upon the plaintiffs’ default in opposing the motion and denied their cross motion to disqualify the defendants’ attorneys.

Ordered that the appeal from so much of the order as granted the motion is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see, CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The plaintiffs did not oppose, either in their cross motion or separately, the defendants’ motion, inter alia, to dismiss the complaint. No appeal lies from an order entered upon the default of the appealing party (see, Glickman v Sami, 149 AD2d 458; Ciaccio v Germin, 138 AD2d 664, 665; Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Am. Ins. Co., 117 AD2d 588).

The Supreme Court properly denied the plaintiffs’ cross motion to disqualify the defendants’ attorneys. The plaintiffs did not prove, inter alia, the existence of a prior attorney-client relationship between themselves and opposing counsel (see, Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131; Gussack v Goldberg, 248 AD2d 671, 672). Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.