Masone v. New York City

Full title: THOMAS MASONE, Appellant, v. NEW YORK CITY HOUSING AUTHORITY et al.…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 16, 2001

279 A.D.2d 323 (N.Y. App. Div. 2001)

719 N.Y.S.2d 241

Opinion

January 16, 2001.

Appeal from order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about November 24, 1999, which, insofar as appealed from, granted, on default, defendant-respondent's motion for summary judgment dismissing the complaint as against it, unanimously dismissed, without costs.

Yvonne Gonzalez, J.

The motion court's refusal to consider plaintiffs opposition papers served after the date fixed for their receipt in a written stipulation (CPLR 2214 [c]) constituted a finding of default on the motion, for which plaintiffs remedy is not an appeal but a motion to vacate the default (CPLR 5511; Shannon v. City of New York, 275 A.D.2d 671). Hence, the appeal is dismissed. Since plaintiff's opposition papers appeared to have merit, we grant leave, sua sponte, to plaintiff to move to vacate the default within 30 days of the date of this order.