Shannon v. City of New York

275 A.D.2d 671, 713 N.Y.S.2d 858, 2000 N.Y. App. Div. LEXIS 10058

Opinion

—Appeal from order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered June 30, 1999, which, in an action for personal injuries sustained in a fall allegedly caused by a sidewalk defect, granted, on default, plaintiffs’ motion to vacate a prior order granting, on default, defendants-appellants’, abutting landowner and demolition contractor, motion for summary judgment dismissing the complaint as against them, and, upon vacatur, denied such motion for summary judgment, unanimously dismissed, without costs.

While there may be an issue whether plaintiffs ever established the merits of the case, we nevertheless dismiss the appeal. Defendants’ failure to submit timely papers in opposition to plaintiffs’ motion to vacate their default, or obtain" permission to submit late papers, constituted a default on the motion for which their remedy is not an appeal but a motion to vacate the default (CPLR 5511). Accordingly, the appeal is dismissed. Concur — Sullivan, P. J., Williams, Ellerin, Wallach and Friedman, JJ.