Opinion
2005-617 K C.
Decided March 27, 2006.
Appeal from orders of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), each dated March 3, 2005. The orders granted defendant's motion to dismiss the complaint for failure to comply with discovery demands, and, inter alia, denied plaintiff's motion for summary judgment as moot.
Appeal dismissed.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ
After plaintiff failed to interpose a written response to defendant's dismissal motion or to provide the discovery for which it stipulated, the court granted the motion and dismissed the action, rejecting plaintiff's oral application for a protective order as "untimely [and] unnoticed." Such an order must be deemed to be entered on plaintiff's default, and since plaintiff limits its appeal to the propriety of said order, the appeal is dismissed as no appeal lies from an order entered on default ( Flake v. Van Wagenen, 54 NY 25; Fox v. T.B.S.D., Inc., 278 AD2d 612; 301 Oriental Blvd. v. Rovner, 5 Misc 3d 134 [A], 2004 NY Slip Op 51480[U] [App Term, 2d 11th Jud Dists]). This result pertains even where, as here, the appealing party appears on the motion's return date and orally opposes the motion. Such arguments are not part of the record, and in any event, as unsworn, they are without evidentiary value ( Brown v. Chase, 3 Misc 3d 129 [A], 2004 NY Slip Op 50371[U] [App Term, 2d 11th Jud Dists]; see also Vanderveer Apts. v. Moore, 2 Misc 3d 132 [A], 2004 NY Slip Op 50123[U] [App Term, 2d 11th Jud Dists]).
In view of the foregoing, the appeal from the order which, inter alia, denied plaintiff's motion for summary judgment is dismissed as academic. In any event, plaintiff raises no issue as to said order.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.