Yuan v. Kaplan

129 A.D.3d 714, 8 N.Y.S.3d 916

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 2015
• Docket: 2013-08827
• Status: Published

Opinion

In an action to recover damages for legal malpractice and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated March 21, 2013, which granted the defendants’ unopposed motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

Ordered that the appeal is dismissed, with costs.

The plaintiff did not submit papers to the Supreme Court in opposition to the defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, and the motion was granted on default. No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; Reynolds v Haiduk, 120 AD3d 656 [2014]; HCA Equip. Fin., LLC v Mastrantone, 118 AD3d 850 [2014]; J.F.J. Fuel, Inc. v Tran Camp Contr. Corp., 105 AD3d 908 [2013]). Since the order appealed from was entered upon the plaintiff’s default in opposing the motion, the appeal must be dismissed (see Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Am. Ins. Co., 117 AD2d 588 [1986]).

Skelos, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.