Liebowitz v. Patterson

In an action to recover damages for defamation, the plaintiff Lillian R. Villanova appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered November 25, 1986, as denied her motion for summary judgment and granted the defendant’s motion to dismiss the complaint insofar as asserted by her. Ordered that the appeal is dismissed, with costs. In the course of a matrimonial action involving, inter alia, a demand for child support, the respondent made certain assertions in a reply affidavit about her husband’s financial status and his dealings with his law partners. Subsequently, those law partners commenced the instant action, alleging, in a verified complaint, that these written statements were in fact defamatory. During the subsequent extensive motion practice, the respondent moved for a dismissal of the complaint, and the appellant, without responding to the motion to dismiss, moved for summary judgment in her favor. The Supreme Court granted the respondent’s motion for dismissal of the complaint insofar as asserted by the appellant on the ground that the appellant had defaulted on the motion to dismiss and [116] failed to provide discovery materials pursuant to a prior order of the court. The Supreme Court denied the appellant’s motion for summary judgment on the ground that the requisite conditions needed to establish summary judgment as provided in CPLR 3212 (b) had not been met. The appeal from that part of the Supreme Court’s order which granted a dismissal of the complaint insofar as asserted by the appellant must be dismissed. A party may not appeal from ah order entered upon her default; the proper remedy is an application to vacate the default made to the court which issued the order (Calvagno v Nationwide Mut. Fire Ins. Co., 110 AD2d 741). Since the complaint has been dismissed, we need not reach the propriety of that part of the order which denied the appellant’s motion for summary judgment, and the appeal from the remainder of the order is dismissed as academic. Mollen, P. J., Thompson, Rubin and Sullivan, JJ., concur.