HCA Equipment Finance, LLC v. Mastrantone

118 A.D.3d 850, 987 N.Y.S.2d 240

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 2014
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Putnam County (Lubell, J.), dated February 27, 2013, which, upon an order of the same court dated January 11, 2013, granting the plaintiff’s unopposed motion for summary judgment on the complaint and to dismiss the affirmative defenses, among other things, is in favor of the plaintiff and against him in the principal sum of $117,055.46.

Ordered that the appeal is dismissed, with costs.

The defendant failed to submit papers to the Supreme Court in opposition to the plaintiffs motion for summary judgment on the complaint and to dismiss the affirmative defenses, and the motion was granted on default. “No appeal lies from an order or judgment granted upon the default of the appealing party” (J.F.J. Fuel, Inc. v Tran Camp Contr. Corp., 105 AD3d 908, 908 [2013]; see CPLR 5511). Since the judgment appealed from was entered upon the defendant’s default in opposing the motion, the appeal must be dismissed (see Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Am. Ins. Co., 117 AD2d 588 [1986]).

Dickerson, J.E, Leventhal, Hall and Miller, JJ, concur.