Johnson v Neidl

Johnson v Neidl 2015 NY Slip Op 05726 Decided on July 2, 2015 Appellate Division, Third 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: July 2, 2015
519435

[*1]JOHNATHAN JOHNSON, Appellant,

v

CYNTHIA E. NEIDL, Respondent.

Calendar Date: June 2, 2015
Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

Johnathan Johnson, Malone, appellant pro se.

Steptoe & Johnson, LLP, New York City (Justin Y.K. Chu of counsel), for respondent.

Lahtinen, J.

MEMORANDUM AND ORDER

Appeals (1) from an order of the Supreme Court (Lebous, J.), entered June 17, 2014 in Broome County, which denied plaintiff's motion for reconsideration of a prior order denying his motion for, among other things, a default judgment, and (2) from an order of said court, entered July 18, 2014 in Broome County, which denied plaintiff's ex parte motion to serve defendant by an alternate method.

Plaintiff, a prison inmate, commenced this legal malpractice action in connection with defendant's representation of him during a federal civil rights trial. Supreme Court denied plaintiff's motion for a default judgment given plaintiff's failure to properly effectuate service upon defendant and also denied his ex parte motion for an order directing service by mail or other alternative method. Plaintiff's subsequent motion to

reargue and/or renew was denied. Thereafter, plaintiff filed another ex parte motion seeking an order directing an alternate method of service, which the court denied. Plaintiff appeals from the denial of his motion to reargue and/or renew, as well as his subsequent ex parte motion.

Initially, we note that any challenge with regard to the denial of plaintiff's motion to reargue and/or renew is abandoned given his failure to raise any issues thereto in his brief (see Dunn v Northgate Ford, Inc., 16 AD3d 875, 876 n 2 [2005]). To the extent that plaintiff challenges the denial of his request for an order directing an alternate method of service of the summons and complaint, it is well settled that an appeal does not lie from an ex parte order (see CPLR 5701 [a] [2]; see also Sholes v Meagher, 100 NY2d 333, 335 [2003]; Matter of Barnes v Schroyer, 120 AD3d 1492, 1493 [2014]; Matter of Tyler v Selsky, 267 AD2d 522, 522 [1999]). Accordingly, the appeal from that order must be dismissed.

Peters, P.J., Garry and Lynch, JJ., concur.

ORDERED that the order entered June 17, 2014 is affirmed, without costs.

ORDERED that the appeal from the order entered July 18, 2014 is dismissed, without costs.