D'Agostino Law Office, P.C. v. Parlante

58 A.D.3d 668, 870 N.Y.S.2d 793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 2009
• Status: Published

Opinion

In an action to recover unpaid legal fees, the defendants appeal from a judgment of the Supreme Court, Westchester County (Loehr, J.), dated January 17, 2008, which, upon an order of the same court entered January 16, 2008, granting the plaintiffs unopposed motion for summary judgment in lieu of complaint, is in favor of the plaintiff and against them in the principal sum of $18,155.41.

Ordered that the appeal is dismissed, with costs.

The defendants failed to submit papers in opposition to the plaintiffs motion for summary judgment in lieu of complaint within the time provided in the notice of motion (see CPLR 3213), and the plaintiffs motion for summary judgment in lieu of complaint was granted on default. No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; Sanchez v Village of Ossining, 271 AD2d 674 [2000]; Lumbermen’s Mut Cas. Co. v Fireman’s Fund Am. Ins. Co., 117 AD2d 588 [1986]). Since the judgment was entered pursuant to an order granting the plaintiffs motion for summary judgment upon the defendants’ default in appearing and opposing the motion, the appeal must be dismissed (see Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Aon. Ins. Co., 117 AD2d 588 [1986]). Rivera, J.P, Florio, Angiolillo, McCarthy and Chambers, JJ., concur.