Kelly v Morales

[*1] Kelly v Morales 2008 NY Slip Op 50712(U) [19 Misc 3d 135(A)] Decided on March 27, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-1258 Q C.

Carmen Yshara Kelly, Appellant,

against

Miriam Morales, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen Healy, J.), entered July 9, 2007. The order granted defendant's unopposed motion to compel plaintiff to accept defendant's answer.

Appeal dismissed.

In this action to recover damages for personal injuries arising out of an automobile accident, defendant moved to compel plaintiff to accept her late answer. Since defendant's application was unopposed, the appeal by plaintiff from the order granting the motion must be dismissed, as the order appealed from was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v
Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Infinity Chiropractic, P.C. v New York Cent. Mut. Ins. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50262[U] [App Term, 2d & 11th Jud Dists 2007]). We note that the instant disposition is without prejudice to plaintiff moving to set aside her default in opposing defendant's motion.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 27, 2008