Ortiz v Lanzo

[*1] Ortiz v Lanzo 2016 NY Slip Op 50004(U) Decided on January 4, 2016 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 4, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.
570983/15

Rosita Ortiz, Plaintiff-Appellant,

against

Dominga Nieves Lanzo, Ivan Lanzo, and Elizabeth Lanzo, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered July 27, 2015, which granted defendant Ivan Lanzo's motion to dismiss the complaint on the ground of res judicata.

Per Curiam.

Appeal from order (David B. Cohen, J.), entered July 27, 2015, dismissed, without costs.

Inasmuch as plaintiff-appellant failed to submit opposition papers to the underlying motion, the resulting order was entered upon plaintiff's default within the meaning of CPLR 5511 and is therefore nonappealable (see Benitez v Olson, 29 AD3d 503 [2006]; Fox v T.B.S.D., Inc., 278 AD2d 612 [2000], lv denied, 96 NY2d 716 [2001]). Plaintiff's remedy was to move to vacate the default (see Figiel v Met Food, 48 AD3d 330 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: January 04, 2016