Opinion
No. 2010–2967 K C.
2012-03-7
Abdus SHAHID, Appellant, v. LINEAR ENVIRONMENTAL, Respondent.
Present: WESTON, J.P., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 21, 2010. The order granted defendant's motion for, among other things, dismissal of the complaint.
ORDERED that the appeal is dismissed.
Plaintiff commenced this action to recover $7,339.05 with interest for defendant's alleged failure to provide services. Defendant moved for, among other things, dismissal of the complaint. The Civil Court granted defendant's motion in an order, which stated, in pertinent part, “motion to dismiss plaintiff's complaint granted without opposition.” The order form further noted that plaintiff's answering affidavit was not considered because there was “no service.” On appeal, plaintiff argues that his complaint was improperly dismissed and that he provided the Civil Court with an affidavit of service, reflecting service on defendant of papers in opposition to defendant's motion in advance of the motion hearing date.
We note at the outset that the copies of the affidavit of service plaintiff seeks to introduce with his appellate briefs may not be considered, as they are dehors the record ( see Chimarios v. Duhl, 152 A.D.2d 508 [1989] ). Since the Civil Court did not consider plaintiff's opposing papers, the order granting defendant's motion is deemed to be entered on default. As no appeal lies from an order entered on the default of the appealing party, the appeal must be dismissed ( seeCPLR 5511; Benitez v. Olson, 29 AD3d 503 [2006];Litkenhaus v. 1158 Hylan Blvd. Corp., 26 Misc.3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Greater NY, LLC v. 800 Jeffco Corp., 24 Misc.3d 22, 23 [App Term, 2d, 11th & 13th Jud Dists 2009] ).