Casamassima v. Golden Gate Cafe Inc.

Full title: Elio CASAMASSIMA, Plaintiff–Appellant, v. GOLDEN GATE CAFE INC.…

Court: Supreme Court, Appellate Term, First Department, New York.

Date published: Nov 22, 2016

48 N.Y.S.3d 264 (N.Y. App. Term 2016)

Opinion

No. 570483/16.

11-22-2016

Elio CASAMASSIMA, Plaintiff–Appellant, v. GOLDEN GATE CAFE INC., Defendant–Respondent.

PER CURIAM.

Appeal from order (Joseph E. Capella, J.), entered April 27, 2016, dismissed, without costs.

Inasumuch as plaintiff-appellant failed to submit opposition papers to the underlying motion, the resulting order was entered upon plaintiff's default within the meaning of CPLR 5511 and is therefore nonappealable (see Benitez v. Olsen, 29 A.D.3d 503 [2006] ; Fox v. T.B.S.D., Inc., 278 A.D.2d 612 [2000], lv denied 96 N.Y.2d 716 [2001] ).

Plaintiff's remedy was to move to vacate the default (see Figiel v. Met Food, 48 A.D.3d 330 [2008] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur.