Forest Parkway Realty Co., Inc. v Harrison

[*1] Forest Parkway Realty Co., Inc. v Harrison 2007 NY Slip Op 50395(U) [14 Misc 3d 144(A)] Decided on March 5, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1258 Q C.

Forest Parkway Realty Co., Inc., Appellant,

against

Benny Harrison, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), entered May 27, 2005. The order dismissed the petition with prejudice in a nonpayment summary proceeding.

Appeal dismissed.

In this nonpayment proceeding, the court dismissed the petition with prejudice
when landlord was not ready to proceed at an abatement hearing. Landlord's failure to proceed constitutes a default (see CPLR 3215 [a]; Matter of Reynolds v Spanakos, 196 AD2d 798 [1993]; 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3215.02), and no appeal lies
from a judgment or order entered upon such a default (see CPLR 5511; Murphy v Shaw, 34 AD3d 657 [2006]; Eller v Eller, 116 AD2d 617 [1986]). Accordingly, the appeal must be dismissed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 5, 2007