Opinion
527470
03-12-2020
Echo Westley DIXON, Appellant, v. Donald G. UHLER, as Superintendent of Upstate Correctional Facility, et al., Respondents.
Echo Westley Dixon, Elmira, appellant pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Echo Westley Dixon, Elmira, appellant pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Before: Garry, P.J., Lynch, Clark, Mulvey and Devine, JJ.
MEMORANDUM AND ORDER As is relevant to this appeal, plaintiff commenced this action against defendants asserting liability under 42 USC § 1983. Following joinder of issue, defendants moved to dismiss the complaint for failure to state a cause of action. Supreme Court, among other things, found that plaintiff did not timely interpose any opposition thereto and granted defendants' motion to dismiss the complaint on default. Plaintiff appeals.
"It is well settled that no appeal lies from an order that is entered upon the default of the appealing party" ( Walker v. State of New York , 151 A.D.3d 1315, 1316, 54 N.Y.S.3d 322 [2017] [internal quotation marks, brackets and citations omitted]; see Matter of Friedman [Loksen] , 156 A.D.3d 971, 971–972, 64 N.Y.S.3d 925 [2017], lv dismissed 31 N.Y.3d 1137, 81 N.Y.S.3d 362, 106 N.E.3d 745 [2018] ; Johnson v. State of New York , 140 A.D.3d 1558, 1558, 33 N.Y.S.3d 783 [2016] ). Plaintiff's failure to timely oppose defendants' motion was properly considered by Supreme Court as a default (see Walker v. State of New York , 151 A.D.3d at 1316, 54 N.Y.S.3d 322 ; Johnson v. State of New York , 140 A.D.3d 1558, 1562, 33 N.Y.S.3d 783 [2016] ). As such, the appeal is not properly before this Court. Although the record reflects that the court denied plaintiff's subsequent motion to vacate the default judgment, the record does not contain a notice of appeal from that order.
Garry, P.J., Lynch, Clark, Mulvey and Devine, JJ., concur. ORDERED that the appeal is dismissed, without costs.