Rosse v Kings Nissan, Inc.

[*1] Rosse v Kings Nissan, Inc. 2010 NY Slip Op 51960(U) [29 Misc 3d 134(A)] Decided on November 12, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-921 K C.

Maria Rosse, Respondent,

against

Kings Nissan, Inc., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered March 26, 2009. The order granted plaintiff's motion to amend the caption.

ORDERED that the appeal is dismissed.

Plaintiff brought the instant small claims action against "Nissan Motor Acceptance Corporation dba Kings Nissan" for breach of contract. A small claims arbitrator found in favor of plaintiff, who later moved to amend the caption to reflect that the true name of the defendant was "Kings Nissan, Inc." The motion was granted.

Since defendant submitted no papers in opposition to plaintiff's motion, defendant's appeal from the order granting plaintiff's motion must be dismissed, as the order is considered to have been entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Macik v Stutman, 21 Misc 3d 144[A], 2008 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2008]; DaimlerChrysler Servs. N. Am. LLC v Mazza, 13 Misc 3d 140[A], 2006 NY Slip Op 52252[U] [App Term, 2d & 11th Jud Dists 2006]; 301 Oriental Blvd. LLC v Rovner, 5 Misc 3d 134[A], 2004 NY Slip Op 51480[U] [App Term, 2d & 11th Jud Dists 2004]). It is of no consequence that defendant may have participated in oral argument on the motion, since said argument would have been unsworn and was therefore of no evidentiary value (see Fox v T.B.S.D., Inc., 278 AD2d 612 [2000]; 301 Oriental Blvd. LLC, 5 Misc 3d 134[A], 2004 NY Slip Op 51480[U]; Vanderveer Apts. v Moore, 2 Misc 3d 132[A], 2004 NY Slip Op 50123[U] [App Term, 2d & 11th Jud Dists 2004]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010