Casamassima v. Golden Gate Cafe Inc.

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