Johnson v. State of New York

140 A.D.3d 1558, 33 N.Y.S.3d 783

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 30, 2016 521062 ________________________________

JOHNATHAN JOHNSON, Appellant, v MEMORANDUM AND ORDER

STATE OF NEW YORK, Respondent. ________________________________

Calendar Date: May 31, 2016

Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Johnathan Johnson, Malone, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.

Egan Jr., J.

Appeal from an order of the Court of Claims (DeBow, J.), entered April 23, 2015, which granted defendant's motion to dismiss the claim.

In 2009, claimant, an inmate at Upstate Correctional Facility, filed a claim alleging that he had been denied, among other things, certain prescribed medication and access to his legal mail. Defendant answered, asserted numerous affirmative defenses and, in 2015, moved to dismiss the claim. After claimant failed to submit any papers in opposition to defendant's motion, the Court of Claims granted the motion upon his default and dismissed the claim. Claimant now appeals.

It is well settled that no appeal is permitted from an order entered upon a party's default (see CPLR 5511) – the sole -2- 521062

remedy being to move to vacate the default order and, if that motion is denied, to appeal such denial (see CPLR 5015 [a] [1]; Matter of Susan UU. v Scott VV., 119 AD3d 1117, 1118 [2014]; Matter of Jay v Fischer, 102 AD3d 1021, 1021 [2013]; DeLuke v Albany Rest. Supply, Inc., 42 AD3d 601, 601 [2007]). Here, claimant did not file any responsive papers to defendant's motion, despite evidence in the record establishing that he was served with the motion. Accordingly, the Court of Claims properly treated claimant's failure to respond to defendant's motion as a default (see Matter of County of Albany [Bowles], 91 AD3d 1132, 1133 [2012]; M & C Bros., Inc. v Torum, 75 AD3d 869, 870-871 [2010]). As claimant failed to move to vacate the default order, his appeal is not properly before us.

Lahtinen, J.P., Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court