Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), dated November 27, 2006. The order granted defendant's motion to vacate a default judgment.

Appeal dismissed.

Although plaintiff was physically present in the Small Claims Part of the Civil Court on the return date of the motion, no written opposition to defendant's motion was submitted. Such an order is deemed to have been entered on plaintiff's default (see Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50479[U] [App Term, 2d & 11th Jud Dists 2006]). Accordingly, since
plaintiff's appeal is based upon the propriety of that order, the appeal must be dismissed since no appeal lies from an order entered upon the default of an appealing
party (see CPLR 5511; see also Viggiani v Grodotzke, 306 AD2d 273 [2003]; DaimlerChrysler Servs. N. Am. LLC v Mazza, 13 Misc 3d 140[A], 2006 NY Slip Op 52252[U] [App Term, 2d & 11th Jud Dists 2006]; Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50479[U] [2006], supra). Plaintiff's remedy, if he be so advised, is to move in the court below to vacate the order entered on default.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 03, 2008