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Arturo Salinas v. Adam J. Csernay

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 23, 2011

ARTURO SALINAS,
APPELLANT,
v.
ADAM J. CSERNAY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 13, 2010, deemed from a judgment of the same court entered August 9, 2010 (see CPLR 5501 [c]).

Salinas v Csernay

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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The judgment, entered pursuant to the July 13, 2010 order granting defendant's motion for summary judgment and denying as untimely plaintiff's cross motion for summary judgment on the issue of liability, dismissed the complaint.

ORDERED that the appeal is dismissed.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, the Civil Court, by order entered July 13, 2010, granted defendant's motion for summary judgment dismissing the complaint and denied as untimely filed plaintiff's cross motion for summary judgment on the issue of liability. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although the Civil Court's July 13, 2010 order refers to "answering affidavits" in its CPLR 2219 (a) recitation of the papers considered, it expressly states that plaintiff's cross motion (which included plaintiff's papers in opposition to defendant's motion) was untimely filed, and both parties admit that the Civil Court did not review the papers submitted by plaintiff in opposition to defendant's motion. Thus, the part of the order which granted defendant's motion for summary judgment dismissing the complaint must be considered as having been entered on default, and no appeal by the defaulting party lies therefrom or from a judgment entered pursuant thereto (see CPLR 5511; Viggiani v Grodotzke, 306 AD2d 273 [2003]). In view of the foregoing, so much of plaintiff's appeal from the judgment as brings up for review the part of the order which denied his cross motion for summary judgment is academic. Plaintiff's remedy, if he be so advised, is to move in the Civil Court to vacate his default. Accordingly, the appeal is dismissed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: May 23, 2011

20110523

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