| Reynolds v Haiduk |
| 2014 NY Slip Op 05854 [120 AD3d 656] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Anne Reynolds, Appellant, et al.,Plaintiff, v Walter Haiduk, Respondent et al.,Defendant. |
Peska & Associates, P.C., White Plains, N.Y. (Adam M. Peska of counsel), forappellant.
Jeffrey S. Greene, P.C., White Plains, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff AnneReynolds appeals, as limited by her brief, from so much of an order of the SupremeCourt, Westchester County (Colabella, J.), entered September 27, 2012, as granted thatbranch of the motion of the defendant Walter Haiduk which was for summary judgmentdismissing the second cause of action insofar as asserted by the plaintiff Anne Reynoldsagainst him, upon her failure to oppose the motion.
Motion by the respondent Walter Haiduk, inter alia, to dismiss the appeal on thegrounds that the appellant is not aggrieved or that the appeal has been renderedacademic. By decision and order on motion of this Court dated June 20, 2013, thatbranch of the motion which was to dismiss the appeal was held in abeyance and referredto the panel of Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is
Ordered that the branch of the motion which was to dismiss the appeal from theorder is granted; and it is further,
Ordered that the appeal from the order is dismissed, with costs.
The appellant failed to submit papers to the Supreme Court in opposition to themotion of the defendant Walter Haiduk for, inter alia, summary judgment dismissing thesecond cause of action insofar as asserted by the appellant against him, and the motionwas granted on default. No appeal lies from an order or judgment granted upon thedefault of the appealing party (see CPLR 5511; J.F.J. Fuel, Inc. v Tran CampContr. Corp., 105 AD3d 908, 908 [2013]; Washington Mut. Bank v Valencia, 92 AD3d 774, 774[2012]; HSBC Mtge. Corp.[USA] v MacPherson, 89 AD3d 1061, 1062 [2011]). Since the order appealedfrom was entered upon the appellant's failure to oppose the motion, the appeal must bedismissed (see Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117[*2]AD2d 588 [1986]).
We decline the request of the defendant Walter Haiduk for the imposition ofsanctions against the appellant and her counsel based upon allegedly frivolous conduct inprosecuting this action and appeal against him (see 22 NYCRR 130-1.1). Mastro,J.P., Dickerson, Hinds-Radix and Duffy, JJ., concur.