Opinion
Motion No: 2017-01962 KC
05-21-2019
Karina K. Acupuncture, P.C., as Assignee of Carlos Hernandez, Appellant, v. State Farm Mutual Automobile Ins. Co., Respondent.
THOMAS P. ALIOTTA
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
Appeal from an order of the Civil Court of the City of New York, Kings County, entered August 15, 2017. The order "resolved" respondent's motion to strike the complaint or for alternative relief.
On the court's own motion, it is
ORDERED that the appeal is dismissed.
It appears that the order appealed from was entered on consent. No appeal lies from an order entered on consent (see CPLR 5511). In any event, although the record contains papers apparently submitted in opposition to respondent's motion, the CPLR 2219 (a) recitation of the papers considered by the Civil Court indicates that the court considered only respondent's notice of motion and annexed affidavits. In this posture, the order appealed from, if not entered on consent, must be considered as having been entered on default (cf. Renelique v American Tr. Ins. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50482[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]) and the appeal must be dismissed (CPLR 5511; see Fox v T.B.S.D., Inc., 278 AD2d 612 [2000]). Appellant's remedy, if it be so advised, is to seek relief in the Civil Court upon a written motion.
ENTER:
Paul Kenny
Chief Clerk