Batra v. State Farm Fire & Casualty Co.

205 A.D.2d 480, 614 N.Y.S.2d 133, 1994 N.Y. App. Div. LEXIS 7015

Opinion

Appeal from order, Supreme Court, New York County (Joan Lobis, J.) entered on or about July 16, 1993, which granted defendants’ motion to dismiss plaintiffs claims for punitive damages and attorney’s fees "without opposition”, unanimously dismissed, without costs.

Plaintiff should be deemed to have defaulted on defendants’ motion to strike the portions of the complaint seeking punitive damages and attorney’s fees, where, in response to the motion, plaintiff merely interposed requests for adjournments, which were granted, and then never submitted any substantive opposition following the scheduling of the last return date. As no appeal lies from an order entered on the default of an aggrieved party (CPLR 5511), plaintiffs remedy having been to move to vacate his default in the IAS Court and, if that motion was denied, to appeal the order denying the motion (Myers & Co. v Owsley & Sons, 192 AD2d 927), we dismiss the appeal. In any event, were we to review the merits, we would find plaintiffs claims to be without merit (Samovar of Russia Jewelry Antique Corp. v Generali, 102 AD2d 279). Concur—Rosenberger, J. P., Wallach, Kupferman and Nardelli, JJ.