Opinion
06-30-2016
Johnathan JOHNSON, Appellant, v. STATE of New York, Respondent.
Johnathan Johnson, Malone, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Johnathan Johnson, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and AARONS, JJ.
Opinion McCARTHY, J.P. Appeal from an order of the Court of Claims (DeBow, J.), entered April 23, 2015, which granted defendant's motion to dismiss the claim.
In 2009, claimant, an inmate at Upstate Correctional Facility, filed a claim alleging that he had been denied certain prescribed medication and access to the law library, that a prison official had tampered with his lunch tray and that he had been served improper meals. Defendant answered and asserted numerous affirmative defenses and subsequently sought dismissal of the claim. After claimant failed to submit any papers in opposition to defendant's motion, the Court of Claims granted the motion upon his default and dismissed the claim. Claimant now appeals.
It is well settled that no appeal is permitted from an order entered upon a party's default (see CPLR 5511 ), the sole remedy being to move to vacate the default order and, if that motion is denied, to appeal such denial (see CPLR 5015[a][1] ; Matter of Susan UU. v. Scott VV., 119 A.D.3d 1117, 1118, 990 N.Y.S.2d 655 [2014] ; Matter of Jay v. Fischer, 102 A.D.3d 1021, 1021, 957 N.Y.S.2d 907 [2013] ; DeLuke v. Albany Rest. Supply, Inc., 42 A.D.3d 601, 601, 839 N.Y.S.2d 569 [2007] ). Here, claimant did not file any responsive papers to defendant's motion, despite evidence in the record establishing that he was properly served with the motion. Accordingly, the Court of Claims properly treated claimant's failure to respond to defendant's motion as a default (see Matter of County of Albany [Bowles], 91 A.D.3d 1132, 1133, 936 N.Y.S.2d 763 [2012] ; M & C Bros., Inc. v. Torum, 75 A.D.3d 869, 870–871, 907 N.Y.S.2d 78 [2010] ). The record does not reflect that claimant moved to vacate the default order, and his appeal from the default order is not properly before us.
ORDERED that the appeal is dismissed, without costs.
GARRY, LYNCH, DEVINE and AARONS, JJ., concur.