Johnson v. State of New York

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 30, 2016 521058 ________________________________

JOHNATHAN JOHNSON, Appellant, v MEMORANDUM AND ORDER

STATE OF NEW YORK, Respondent. ________________________________

Calendar Date: May 23, 2016

Before: Garry, 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.

Devine, 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 certain prescribed medication and access to his legal mail, that a prison official filed a false misbehavior report against him and that he received a disciplinary disposition in an untimely manner. Defendant answered and asserted numerous affirmative defenses and subsequently moved to dismiss the claim. Claimant failed to submit any papers in opposition to defendant's motion, despite having been served with it, and the Court of Claims granted the motion upon his default. Claimant now appeals. -2- 521058

It is well settled that no appeal is permitted from an order entered upon a party's default (see CPLR 5511). A party's sole remedy is rather to move to vacate the default order and, if necessary, to appeal from the denial of that motion (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]). As claimant failed to employ that procedure, the present appeal is not properly before us.

Garry, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court