Brown v Chase

[*1] Brown v Chase 2004 NY Slip Op 50371(U) Decided on April 27, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED April 29, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-946 K C

MARITZA BROWN, Respondent,

against

EDITH YVONNE CHASE, Appellant.

Appeal by tenant from a final money judgment of the Civil Court, Kings County (D. Jimenez, J.), entered June 19, 2003, awarding landlord the sum $3,500.

Appeal unanimously dismissed.

In this summary holdover proceeding, on April 22, 2003, the parties entered into a stipulation of settlement providing, inter alia, for entry of a final judgment of possession, with execution of the warrant stayed until August 31, 2003, on condition that tenant pay use and occupancy in the amount of $875 per month, with the equivalent of three prior unpaid months due within 24 hours. Judgment of possession upon these terms was entered. The stipulation made no provision for entry of a money judgment. Upon tenant's failure to make payment, landlord moved for, and was granted, the money judgment at issue here, entered June 19, 2003, from which tenant appeals.

Failure to interpose written opposition to a motion renders the resulting order or judgment equivalent to an order or judgment entered upon consent or at least acquiescence, by which the appellant is not aggrieved, and decisions have likened such an appeal to one taken from an order or judgment entered on default, from which no appeal lies (CPLR 5511; see Vanderveer Apts., LLC v Moore, NYLJ, Feb. 11, 2004 [App Term, 2d & 11th Jud Dists]; Scott v Mellen, NYLJ, Dec. 14, 2000 [App Term, 2d & 11th Jud Dists]). This is true even when, as in this matter, the appealing party appears on the motion return date and orally opposes the motion, as arguments in such a case are not part of the record and at any rate are unsworn and without [*2]evidentiary value (see e.g. Fox v T.B.S.D., Inc., 278 AD2d 612 [2000]). Accordingly, the appeal must be dismissed. [*3]

We note that this disposition is without prejudice to an application below to vacate the judgment, the denial of which is appealable, should tenant be so advised.
Decision Date: April 27, 2004