U.S. Bank N.A. v Tiburcio

U.S. Bank N.A. v Tiburcio 2021 NY Slip Op 06662 Decided on November 30, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 30, 2021
Before: Renwick, J.P., Mazzarelli, Moulton, Scarpulla, Higgitt, JJ.
Index No. 32237/17E Appeal No. 14715 Case No. 2021-01862

[*1]U.S. Bank National Association, Not in its Individual Capacity but Solely as Trustee for the RMAC Trust, Series 2016-CTT, Plaintiff-Respondent,

v

Felix M. Tiburcio, et al., Defendants. Grant Ave Bronx Realty Corp., Defendant-Appellant.

The Rosenfeld Law Office, Lawrence (Avinoam Rosenfeld of counsel), for appellant.

Gross Polowy, LLC, Westbury (Stephen J. Vargas of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (Doris Gonzalez, J.), entered on May 8, 2020, which granted, on default, plaintiff's motion for summary judgment, unanimously dismissed, without costs.

Defendant's failure to submit timely papers in opposition to plaintiff's motion for summary judgment, or obtain permission to submit late papers, constituted a default on the motion for which its remedy is not an appeal but a motion to vacate the default (see CPLR 5511; Shannon v City of New York , 275 AD2d 671 [1st Dept 2000]; Masone v New

York City Hous. Auth. , 279 AD2d 323 [1st Dept 2001]). Accordingly, the appeal is dismissed. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 30, 2021