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Ken Tuchman & Associates, LLC v. Obiakor Medical Practice

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


August 7, 2012

KEN TUCHMAN & ASSOCIATES, LLC, RESPONDENT, --
v.
OBIAKOR MEDICAL PRACTICE, PLLC DOING BUSINESS AS AFAM MULTI-SPECIALTY MEDICAL GROUP, AFAM MULTI-SPECIALTY MEDICAL GROUP, CHUNEL MANAGEMENT
SERVICES ORGANIZATION, LLC, IFEANYI C. O. OBIAKOR AND BARBARA GORDON,
APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered September 23, 2010, deemed from a judgment of the same court entered February 9, 2012 (see CPLR 5501 [c]).

Ken Tuchman & Assoc., LLC v Obiakor Med. Practice, PLLC

Decided on August 7, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The judgment, entered pursuant to the September 23, 2010 order granting, on default, plaintiff's motion for, among other things, summary judgment, awarded plaintiff the principal sum of $22,000.

ORDERED that the appeal is dismissed.

In this action to recover an employment referral fee, the Civil Court, by order entered September 23, 2010, granted plaintiff's motion for, among other things, summary judgment. This appeal by defendants ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although, in its September 23, 2010 order, the Civil Court acknowledged that defendants had submitted written opposition to plaintiff's motion, it expressly declined to consider defendants' opposition papers, which had been "submitted untimely as per the stipulated briefing schedule." Thus, the Civil Court's order must be considered as having been entered on default. No appeal by the defaulting party lies from an order made on default or from a judgment entered pursuant thereto (see CPLR 5511; Viggiani v Grodotzke, 306 AD2d 273 [2003]; Salinas v Csernay, 31 Misc 3d 147[A], 2011 NY Slip Op 50961[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the appeal is dismissed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: August 07, 2012

20120807

© 1992-2012 VersusLaw Inc.



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