Forma v. City of New York

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), [272] dated June 16, 1999, which granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it, upon the plaintiffs default in opposing the motion. Ordered that the appeal is dismissed, with costs. No appeal lies from an order made upon the default of the appealing party (see, CPLR 5511). The proper procedure would have been for the plaintiff to move to open her default and vacate the order dated June 16, 1999, and if necessary, appeal from the denial of the motion to vacate (see, Grober v Busigo, 133 AD2d 389; Imor v Imor, 114 AD2d 552; Calvagno v Nationwide Mut. Fire Ins. Co., 110 AD2d 741). Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.