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D'Agostino Law Office, P.C. v. Parlante

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 20, 2009

D'AGOSTINO LAW OFFICE, P.C., RESPONDENT,
v.
NICHOLAS A. PARLANTE, ET AL., APPELLANTS.

In an action to recover unpaid legal fees, the defendants appeal from a judgment of the Supreme Court, Westchester County (Loehr, J.), dated January 17, 2008, which, upon an order of the same court entered January 16, 2008, granting the plaintiff's unopposed motion for summary judgment in lieu of complaint, is in favor of the plaintiff and against them in the principal sum of $18,155.41.

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.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, WILLIAM E. McCARTHY & CHERYL E. CHAMBERS, JJ.

(Index No. 24414/07)

DECISION & ORDER

ORDERED that the appeal is dismissed, with costs.

The defendants failed to submit papers in opposition to the plaintiff's motion for summary judgment in lieu of complaint within the time provided in the notice of motion (see CPLR 3213), and the plaintiff's motion for summary judgment in lieu of complaint was granted on default. No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; Sanchez v Village of Ossining, 271 AD2d 674; Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588). Since the judgment was entered pursuant to an order granting the plaintiff's motion for summary judgment upon the defendants' default in appearing and opposing the motion, the appeal must be dismissed (see Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588).

RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

20090120

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