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Abdus Shahid v. Linear Environmental

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 7, 2012

ABDUS SHAHID,
APPELLANT,
v.
LINEAR ENVIRONMENTAL,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.),

Shahid v Linear Envtl.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2012

PRESENT: WESTON, J.P., RIOS and ALIOTTA, JJ

entered June 21, 2010.

The order granted defendant's motion for, among other things, dismissal of the complaint.

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover $7,339.05 with interest for defendant's alleged failure to provide services. Defendant moved for, among other things, dismissal of the complaint. The Civil Court granted defendant's motion in an order, which stated, in pertinent part, "motion to dismiss plaintiff's complaint granted without opposition." The order form further noted that plaintiff's answering affidavit was not considered because there was "no service." On appeal, plaintiff argues that his complaint was improperly dismissed and that he provided the Civil Court with an affidavit of service, reflecting service on defendant of papers in opposition to defendant's motion in advance of the motion hearing date.

We note at the outset that the copies of the affidavit of service plaintiff seeks to introduce with his appellate briefs may not be considered, as they are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). Since the Civil Court did not consider plaintiff's opposing papers, the order granting defendant's motion is deemed to be entered on default. As no appeal lies from an order entered on the default of the appealing party, the appeal must be dismissed (see CPLR 5511; Benitez v Olson, 29 AD3d 503 [2006]; Litkenhaus v 1158 Hylan Blvd. Corp., 26 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Greater NY, LLC v 800 Jeffco Corp., 24 Misc 3d 22, 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Weston, J.P., Rios and Aliotta, JJ., concur.

Decision Date: March 07, 2012

20120307

© 1992-2012 VersusLaw Inc.



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