Fordham Gen. Constr. Co., Inc. v White

[*1] Fordham Gen. Constr. Co., Inc. v White 2006 NY Slip Op 50914(U) [12 Misc 3d 127(A)] Decided on May 17, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1267 Q C.

Fordham General Construction Company, Inc., Respondent,

against

John White, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered July 29, 2005. The order denied defendant's motion to dismiss the action.

Appeal dismissed.

In this small claims action involving a claim for payment for home improvement services allegedly rendered, defendant appeals from the order denying his motion to dismiss. The appeal must be dismissed as the order does not constitute a denial of substantial justice, the only issue appealable in the small claims context (CCA 1807), as the sole effect of such a ruling is to set the matter down for trial (see Simmons v Apple Bank, 172 Misc 2d 373 [App Term, 2d & 11th Jud Dists 1997]). Moreover, defendant concedes in his brief that a default judgment was entered against him herein subsequent to the taking of the present appeal. As the right of direct appeal from an intermediate order of the court below terminates with the entry of judgment, the appeal must be dismissed on this ground as well (see Matter of Aho, 39 NY2d 231 [1976]).

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: May 17, 2006