Turner v. Owens Funeral Home, Inc.

2017 NY Slip Op 3128, 149 A.D.3d 639, 50 N.Y.S.3d 870

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2017
• Docket: 3823N
• Status: Published

Opinion

Appeal from order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered June 30, 2015, which, among other things, granted the hospital defendants’ motion and the funeral defendants’ motion for a change of venue from Bronx County to Nassau County, unanimously dismissed, without costs.

Because plaintiffs did not submit any opposition to the motions to change venue, and the order granting the motions was entered without consideration of any arguments by plaintiffs, whether oral or written, the order was entered upon plaintiffs’ default, and is not appealable (see CPLR 5511; Liberty Community Assoc., LP v DeClemente, 139 AD3d 532, 532 [1st Dept 2016]; cf. Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695, 696 [2d Dept 2014] [order was not entered upon the respondent’s default where, among other things, the court addressed the arguments presented by the respondent in her oral opposition to the motion]).

Plaintiffs’ arguments addressed to orders that denied their motions for an adjournment and to reargue are not properly before this Court on this appeal.

Concur — Friedman, J.P., Richter, Feinman, Gische and Gesmer, JJ.