Seodarsan v Latchana

Seodarsan v Latchana 2019 NY Slip Op 01439 Decided on February 27, 2019 Appellate Division, Second 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 on February 27, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
FRANCESCA E. CONNOLLY, JJ.
2017-09374
(Index No. 705450/15)

[*1]Shivraj Seodarsan, et al., respondents,

v

Haricharan Latchana, appellant.

James C. Locantro, Babylon, NY, for appellant.

Daniel Tanon, Ozone Park, NY, for respondents.

DECISION & ORDER

In an action, inter alia, to enforce an easement and to recover damages for breach of the easement, the defendant appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered July 31, 2017. The order granted the plaintiffs' unopposed motion, inter alia, for summary judgment on the complaint and for an inquest on the issue of damages.

ORDERED that the appeal is dismissed, with costs.

The plaintiffs and the defendant own adjoining properties. The plaintiffs commenced this action alleging that the defendant had encroached upon a recorded easement that runs between the parties' properties and was intended to be used as a common driveway. The plaintiffs asserted causes of action seeking to enforce the easement and for damages incurred from the defendant's encroachment. The plaintiffs moved, inter alia, for summary judgment on the complaint and for an inquest on the issue of damages. The Supreme Court granted the plaintiffs' unopposed motion and the defendant appeals.

No appeal lies from an order made upon the default of the appealing party (see CPLR 5511; Goss v DiMarco, 145 AD3d 861, 862; Morgan Stanley Mtge. Loan Trust [2007-8XS] v Harding, 141 AD3d 511, 511). Consequently, since the defendant did not submit papers in opposition to the plaintiffs' motion, the defendant's appeal must be dismissed (see Gitzis v Isakov, 150 AD3d 1085, 1085; Goss v DiMarco, 145 AD3d at 862; T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 139 AD3d 1038, 1038).

We decline the plaintiffs' request for the imposition of sanctions based upon the defendant's allegedly frivolous conduct in prosecuting this appeal (see Matter of Talbot, 134 AD3d 726, 727; Reynolds v Haiduk, 120 AD3d 656, 657).

MASTRO, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court