DeLuke v. Albany Restaurant Supply, Inc.

Appellate Division of the Supreme Court of New York

DeLuke v. Albany Restaurant Supply, Inc.

42 A.D.3d 601, 839 N.Y.S.2d 569

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 5, 2007

StatusPublished

Cited by7 cases

This text of 42 A.D.3d 601 (DeLuke v. Albany Restaurant Supply, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DeLuke v. Albany Restaurant Supply, Inc., 42 A.D.3d 601, 839 N.Y.S.2d 569 (N.Y. Ct. App. 2007).

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Opinion

Lahtinen, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered May 1, 2006 in Albany County, which granted a motion by defendant Palma Lumber Company, Inc. for summary judgment dismissing the complaint against it.

Plaintiff commenced this negligence action alleging that he slipped and fell on snow/ice and injured his back. Following joinder of issue, defendant Palma Lumber Company, Inc. moved for summary judgment dismissing the complaint against it. Plaintiff failed to submit any opposition thereto and Supreme Court, in turn, granted the motion. Plaintiff now appeals.

No appeal lies here inasmuch as the order appealed from was entered upon the default of plaintiff and, as such, it cannot be said that plaintiff has been aggrieved (see Farhadi-Jou v Key Bank of N.Y., 2 AD3d 1041, 1042 [2003]). Plaintiffs sole remedy was to make a motion to vacate the order in Supreme Court and, if unsuccessful in that endeavor, appeal to this Court from the order denying that motion (see State Empls. Fed. Credit Union v Starke, 274 AD2d 656, 658 [2000]). Accordingly, this appeal must be dismissed.

Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur. Ordered that the appeal is dismissed, with costs.

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Lahtinen, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered May 1, 2006 in Albany County, which granted a motion by defendant Palma Lumber Company, Inc. for summary judgment dismissing the complaint against it.

Plaintiff commenced this negligence action alleging that he slipped and fell on snow/ice and injured his back. Following joinder of issue, defendant Palma Lumber Company, Inc. moved for summary judgment dismissing the complaint against it. Plaintiff failed to submit any opposition thereto and Supreme Court, in turn, granted the motion. Plaintiff now appeals.

No appeal lies here inasmuch as the order appealed from was entered upon the default of plaintiff and, as such, it cannot be said that plaintiff has been aggrieved (see Farhadi-Jou v Key Bank of N.Y., 2 AD3d 1041, 1042 [2003]). Plaintiffs sole remedy was to make a motion to vacate the order in Supreme Court and, if unsuccessful in that endeavor, appeal to this Court from the order denying that motion (see State Empls. Fed. Credit Union v Starke, 274 AD2d 656, 658 [2000]). Accordingly, this appeal must be dismissed.

Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur. Ordered that the appeal is dismissed, with costs.

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Bluebook (online)

42 A.D.3d 601, 839 N.Y.S.2d 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deluke-v-albany-restaurant-supply-inc-nyappdiv-2007.

Opinion

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