Opinion
2003-1772 KC.
Decided October 29, 2004.
Appeal by landlord from an order of the Civil Court, Kings County (A. Alterman, J.), entered October 16, 2003, dismissing the proceeding.
Appeal unanimously dismissed.
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
In this summary nonpayment proceeding, tenant, after defaulting, moved by order to show cause to vacate the final judgment and restore the case to the calendar.
Landlord did not submit opposition to the motion, and upon its return date, the court below granted the motion and dismissed the summary proceeding without prejudice. It is well settled that no appeal lies from an order or judgment entered on default (CPLR 5511). To the extent that the court awarded unrequested relief, to wit, dismissing the proceeding, it did so sua sponte and thus that branch of the order is appealable only by permission (CCA 1702 [a] [2]) which we decline to grant ( cf. Northside Studios v. Treccagnoli, 262 AD2d 469). We note that landlord, if it be so advised, may move in the court below to vacate the order.