Bell v. DeSantis

279 A.D.2d 596, 719 N.Y.S.2d 868, 2001 N.Y. App. Div. LEXIS 837

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 2001
• Status: Published

Opinion

In an action, inter alia, to recover interest paid on loans, the plaintiff appeals from an order of the Supreme Court, Westchester County (Fredman, J.), dated February 4, 2000, which, upon his default in opposing the defendants’ motion for leave to renew his prior motion for summary judgment, granted the defendants’ motion for leave to renew, and upon renewal, denied his motion for summary judgment.

Ordered that the appeal is dismissed, with costs.

By order dated September 24, 1999, the Supreme Court, Westchester County, granted the plaintiffs motion for summary judgment. Thereafter, the defendants moved for leave to renew the plaintiff’s motion. Based on the plaintiffs representations that he had not been served with the defendants’ motion papers, the court granted his request to adjourn the motion. However, the defendants subsequently presented proof that they did serve the plaintiff with notice of the motion and that the plaintiff refused to accept service of the motion. Thus, the court refused to consider the plaintiffs opposition to the defendants’ motion.

No appeal lies from an order made upon the default of the appealing party (see, CPLR 5511; Forma v City of New York, 273 AD2d 271). The proper procedure for the plaintiff was to move to open his default and vacate the order dated February 4, 2000, and, if necessary, appeal from the denial of the motion to vacate (see, Forma v City of New York, supra, at 272). Ritter, J. P., Friedmann, H. Miller and Smith, JJ., concur.