[*1]
Durand v Simmons
2008 NY Slip Op 52305(U) [21 Misc 3d 138(A)]
Decided on November 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 7, 2008
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : McCABE, J.P., TANENBAUM and MOLIA, JJ
2008-303 N C.

George A. Durand, Appellant,

against

Cannon Simmons & Carole Simmons, Respondents.


Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated October 29, 2007. The order granted respondents' motion to dismiss the proceeding.


Appeal dismissed.

The lower court's refusal to consider the papers that petitioner submitted in opposition to respondents' motion effectively constituted a granting of respondents' motion on default (see Friedman v Starwood Hotels & Resorts World Wide, Inc., 26 AD3d 161 [2006]; Matter of Aetna Cas. & Sur. Co. v Serrano, 181 AD2d 731 [1992]). No appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; Viggiani v Grodotzke, 306 AD2d 273 [2003]). Thus, the appeal must be dismissed (see Friedman, 26 AD3d 161; Viggiani, 306 AD2d 273).

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: November 07, 2008