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Casamassima v Golden Gate Cafe Inc.
2016 NY Slip Op 51669(U) [53 Misc 3d 149(A)]
Decided on November 22, 2016
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through November 28, 2016; it will not be published in the printed Official Reports.


Decided on November 22, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Gonzalez, JJ.
570483/16

Elio Casamassima, Plaintiff-Appellant,

against

Golden Gate Cafe Inc., Defendant-Respondent.


Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.) entered April 27, 2016, which granted defendant's CPLR 3211(a)(7) motion to dismiss the complaint.

Per Curiam.

Appeal from order (Joseph E. Capella, J.), entered April 27, 2016, dismissed, without costs.

Inasumuch as plaintiff-appellant failed to submit opposition papers to the underlying motion, the resulting order was entered upon plaintiff's default within the meaning of CPLR 5511 and is therefore nonappealable (see Benitez v Olsen, 29 AD3d 503 [2006]; Fox v T.B.S.D., Inc., 278 AD2d 612 [2000], lv denied 96 NY2d 716 [2001]).

Plaintiff's remedy was to move to vacate the default (see Figiel v Met Food, 48 AD3d 330 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur

Decision Date: November 22, 2016