Johnson v. State — 140 A.D.3d 1560

Majority

p. 1560

Johnathan Johnson, Appellant, v State of New York, Respondent.

[33 NYS3d 785]

Appeal from an order of the Court of Claims (DeBow, J.), entered April 23, 2015, which granted defendant’s motion to dismiss the claim.

In 2009, claimant, an inmate at Upstate Correctional Facility, filed a claim alleging, among other things, that two prison officials had refused to give him proper meals so that he could take his prescribed medication. Defendant answered and asserted numerous affirmative defenses and subsequently sought dismissal of the claim. After claimant failed to submit any papers in opposition to defendant’s motion, the Court of Claims granted the motion upon his default and dismissed the claim. Claimant now appeals.

It is well settled that no appeal is permitted from an order entered upon a party’s default (see CPLR 5511), the sole remedy being to move to vacate the default order and, if that motion is denied, to appeal such denial (see CPLR 5015 [a] [1]; Matter of Susan UU. v Scott VV., 119 AD3d 1117 , 1118 [2014]; Matter of

p. 1561

Jay v Fischer, 102 AD3d 1021 , 1021 [2013]; DeLuke v Albany Rest. Supply, Inc., 42 AD3d 601 , 601 [2007]). Here, claimant did not file any responsive papers to defendant’s motion, despite evidence in the record establishing that he was properly served with the motion. Accordingly, the Court of Claims properly treated claimant’s failure to respond to defendant’s motion as a default (see Matter of County of Albany [Bowles], 91 AD3d 1132 , 1133 [2012]; M & C Bros., Inc. v Torum, 75 AD3d 869 , 870-871 [2010]). As claimant has failed to move to vacate the default order, his appeal is not properly before us.

Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.

Ordered that the appeal is dismissed, without costs.

Cases cited

Susan UU. v. Scott VV. 119 AD3d 1117 N.Y. App. Div. 2014-07-10 at 1118 p. 1560
Jay v. Fischer 102 AD3d 1021 N.Y. App. Div. 2013-01-17 at 1021 p. 1561
In re the Foreclosure of Tax Liens 91 AD3d 1132 N.Y. App. Div. 2012-01-19 at 1133 p. 1561
M & C Brothers v. Torum 75 AD3d 869 N.Y. App. Div. 2010-07-15 at 870-871 p. 1561