Appellate Division: Second Judicial Department

M227556

E/sl

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2017-00734 Dana A. Smith, appellant, v Kimberly Smith Hysni, respondent. (Index No. 2199/11)

DECISION & ORDER ON MOTION

Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Suffolk County, purportedly dated December 5, 2016, as untimely taken, or alternatively, to dismiss the appeal on the ground, inter alia, that the notice of appeal does not properly designate the order appealed from as required by CPLR 5515, to dismiss a purported appeal from an order of the same court dated November 23, 2016, for an award of costs and an attorney's fee, and to impose a sanction upon the appellant.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that on the Court's own motion, the notice of appeal is deemed to be from an order of the Supreme Court, Suffolk County, dated November 22, 2016 (see CPLR 5520[c]); and it is further,

ORDERED that the branch of the motion which is to dismiss the purported appeal from the order dated November 23, 2016, is denied as unnecessary, as no appeal was taken from that order, and, in any event, no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the motion is otherwise denied.

DILLON, J.P., LEVENTHAL, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court