| West Sterling Realty LLC v Dupree |
| 2008 NY Slip Op 52176(U) [21 Misc 3d 133(A)] |
| Decided on October 31, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J.
Sikowitz, J.), dated September 17, 2007. The order granted a motion by tenant to the extent of
staying execution of a warrant in a nonpayment summary proceeding.
Appeal dismissed.
Landlord did not submit papers in opposition to tenant's motion, which sought to vacate a default final judgment in favor of landlord, and which was granted to the extent of staying execution of the warrant of eviction. Accordingly, the appeal must be dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; Viggiani v Grodotzke, 306 AD2d 273 [2003]; Benitez v Wychoff Park Assn., 19 Misc 3d 144[A], 2008 NY Slip Op 51107[U] [App Term, 2d & 11th Jud Dists 2008]; Najac v George V. Marinello Used Trucks, Inc., 5 Misc 3d 128[A], 2004 NY Slip Op 51252[U] [App Term, 2d & 11th Jud Dists 2004]). Landlord's remedy, if it be so advised, is to move in the court below to vacate the order entered on default.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 31, 2008