Opinion
05-28-2024
Peitian ZHANG, Plaintiff–Appellant, v. MASTERCARD INC., et al., Defendants–Respondents.
Peitian Zhang, appellant pro se.
Peitian Zhang, appellant pro se.
Singh, J.P., Kennedy, Rodriguez, Pitt–Burke, Michael, JJ.
Appeal from order, Supreme Court, New York County (Arlene P. Bluth, J.), dated April 5, 2023, which, inter alia, granted, on default, defendant Industrial and Commercial Bank of China’s (ICBC) motion to dismiss the complaint against it, unanimously dismissed, without costs.
[1, 2] Plaintiff’s appeal from the court’s order dated April 5, 2023, was untimely as it was dated and filed more than 30 days after defendant ICBC’s April 7, 2023 notice of entry (see 22 NYCRR 202.5-b[b]; CPLR 5513[a]; Avgush v. Jerry Fontan, Inc., 167 A.D.3d 484, 89 N.Y.S.3d 173 [1st Dept. 2018]; Retta v. 160 Water St. Assoc., L.P., 94 A.D.3d 623, 942 N.Y.S.2d 525 [1st Dept. 2012]). In any event, no appeal lies from the April 5, 2023 order as it was entered on default after plaintiff failed to submit opposition to defendant ICBC’s motion to dismiss. Under the circumstances, plaintiff’s legal recourse was to move to vacate the default (see Forest Walnut LLC v. Abizker, 224 A.D.3d 408, 205 N.Y.S.3d 329 [1st Dept. 2024]; Helm v. PHH Mtge. Corp., 193 A.D.3d 420, 147 N.Y.S.3d 1 [1st Dept. 2021]).