Katan Group v. CPC Resources

111 A.D.3d 521, 975 N.Y.S.2d 345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2013
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County (Eileen Bransten, J.), entered October 3, 2012, which, inter alia, granted defendants’ motion to dismiss the complaint, unanimously dismissed, without costs.

Plaintiff defaulted on defendants’ motion to dismiss and for attorneys’ fees. When the IAS court allowed plaintiff additional time to put in opposition papers in lieu of a default, plaintiff instead submitted an amended complaint with completely new allegations and claims. The IAS court ruled this a default. Plaintiff may not appeal an order entered on default (see CPLR 5511; Batra v State Farm Fire & Cas. Co., 205 AD2d 480 [1st Dept 1994]). Plaintiff took no appeal from the corrected order of the court dated November 9, 2012. This Court may review a subsequent order under CPLR 5517 (b); however, because the order appealed from was not appealable as of right, the subsequent November 9 order is not properly before us (id.). Concur — Mazzarelli, J.P., Saxe, Moskowitz, DeGrasse and Gische, JJ.