Opinion
2016–08948 Index No. 24070/08
05-15-2019
HSBC BANK USA, NATIONAL ASSOCIATION, etc., Respondent, v. Dolores L. GUAMAN, Appellant, et al., Defendants.
William R. Lizarraga, Jackson Heights, NY, for appellant. Leopold & Associates, PLLC (Greenberg Traurig, LLP, New York, N.Y. [Daniel R. Milstein ], of counsel), for respondent.
William R. Lizarraga, Jackson Heights, NY, for appellant.
Leopold & Associates, PLLC (Greenberg Traurig, LLP, New York, N.Y. [Daniel R. Milstein ], of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Dolores L. Guaman appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated May 24, 2016. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was to vacate a prior order of the same court, dismissing the complaint pursuant to CPLR 3216, and to restore the action to the calendar.
By order to show cause dated February 14, 2017, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal in the above-entitled action on the ground that the order was entered upon the default of the appellant. By decision and order on motion of this Court dated May 4, 2017, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the order to show cause and the papers filed in response thereto, and upon the submission of the appeal, it is
ORDERED that the motion to dismiss the appeal is granted; and it is further,
ORDERED that the appeal is dismissed, without costs or disbursements.
The defendant Dolores L. Guaman failed to submit papers to the Supreme Court in opposition to the plaintiff's motion, inter alia, to vacate a prior order dismissing the complaint and to restore the action to the calendar, and the motion therefore was granted upon her default (see Adotey v. British Airways, PLC , 145 A.D.3d 748, 749, 44 N.Y.S.3d 82 ; J.F.J. Fuel, Inc. v. Tran Camp Contr. Corp. , 105 A.D.3d 908, 908, 963 N.Y.S.2d 680 ; M & C Bros., Inc. v. Torum , 75 A.D.3d 869, 870, 907 N.Y.S.2d 78 ). Accordingly, we dismiss the appeal, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511 ; Gitzis v. Isakov , 150 A.D.3d 1085, 52 N.Y.S.3d 659 ).
LEVENTHAL, J.P., COHEN, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.