Chelsea Café Group, LLC v. K.C. Engg. & Land Surveying, P.C.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Chelsea Café Group, LLC v K.C. Engg. & Land Surveying, P.C.
2026 NY Slip Op 04396
July 15, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Chelsea Café Group, LLC, appellant,
v
K.C. Engineering and Land Surveying, P.C., et al., respondents.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 15, 2026
2024-09007, (Index No. 53854/21)
Betsy Barros, J.P.
Lara J. Genovesi
Lourdes M. Ventura
Elena Goldberg Velazquez, JJ.
The Raiche Law Firm, Beacon, NY (Raymond P. Laiche of counsel), for appellant.
Tannenbaum Helpern Syracuse & Hirschtritt LLP, New York, NY (Melissa T. Billig and Thomas Catinella of counsel), for respondent K.C. Engineering and Land Surveying, P.C.
Mackey, Butts & Whalen, LLP, Poughkeepsie, NY (Richard R. DuVall of counsel), for respondent Village Construction Co., Inc.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Michael G. Hayes, J.), dated August 7, 2024. The order, insofar as appealed from, upon a prior order of the same court dated February 7, 2024, granted that branch of the application of the defendant K.C. Engineering and Land Surveying, P.C., which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it and granted, without opposition, the motion of the defendant Village Construction Co., Inc., pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it.
ORDERED that the appeal is dismissed, with one bill of costs to the respondents.
In a prior order dated February 7, 2024, the Supreme Court granted the defendant K.C. Engineering and Land Surveying, P.C. (hereinafter K.C.), a conditional order of preclusion. No appeal was taken from the conditional order of preclusion, which the plaintiff has omitted from the record on appeal. On March 27, 2024, K.C. made an application, among other things, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it on the ground that the plaintiff did not comply with the conditional order of preclusion, which became absolute. The defendant Village Construction Co., Inc. (hereinafter Village), moved pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it. In an order dated August 7, 2024, the court, inter alia, granted that branch of K.C.'s application and granted, without opposition, Village's motion.
The appeal from so much of the order dated August 7, 2024, as granted that branch of K.C.'s application which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it on the ground that the plaintiff did not comply with the conditional order of preclusion must be dismissed, because that portion of the order did not decide a motion made on notice (see CPLR 5701[a][2]), and leave to appeal from that portion of the order has not been granted (see id. § 5701[c]; Gorbatov v Tsirelman, 206 AD3d 887, 887).
The appeal from so much of the order dated August 7, 2024, as granted, without opposition, Village's motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it must be dismissed, because no appeal lies from an order entered upon the default of the appealing party (see id. § 5511).
BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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