[*1]
Rutland Rd. Assoc. v Charles
2004 NY Slip Op 51298(U)
Decided on October 29, 2004
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2004
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: October 29, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : ARONIN, J.P., PATTERSON and GOLIA, JJ.
2003-1772 K C

RUTLAND ROAD ASSOCIATES, Appellant,

against

JUDITH CHARLES, Respondent.


Appeal by landlord from an order of the Civil Court, Kings County


(A. Alterman, J.), entered October 16, 2003, dismissing the proceeding.

Appeal unanimously dismissed.

In this summary nonpayment proceeding, tenant, after defaulting, moved by order to show cause to vacate the final judgment and restore the case to the calendar. [*2]
Landlord did not submit opposition to the motion, and upon its return date, the court below granted the motion and dismissed the summary proceeding without prejudice. It is well settled that no appeal lies from an order or judgment entered on default (CPLR 5511). To the extent that the court awarded unrequested relief, to wit, dismissing the proceeding, it did so sua sponte and thus that branch of the order is appealable only by permission (CCA 1702 [a] [2]) which we decline to grant (cf. Northside Studios v Treccagnoli, 262 AD2d 469 [1999]). We note that landlord, if it be so advised, may move in the court below to vacate the order.
Decision Date: October 29, 2004