2015 NY Slip Op 04637
N.Y. App. Div. 2nd
2015

Theresa Yuan, Appellant, v Theodore P. Kaplan et al., Respondents.

Appellate Division of the Supreme Court of the State of New York, Second Department

June 3, 2015

2015 NY Slip Op 04637 | 129 AD3d 714

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2015

Steven A. Morelli, P.C., Garden City, N.Y. (Joshua Beldner of counsel), for appellant.

Furman Kornfeld & Brennan LLP, New York, N.Y. (Andrew S. Kowlowitz and Caroline M. Freilich of counsel), for respondents.

In an action to recover damages for legal malpractice and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated March 21, 2013, which granted the defendants’ unopposed motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

Ordered that the appeal is dismissed, with costs.

The plaintiff did not submit papers to the Supreme Court in opposition to the defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, and the motion was granted on default. No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; Reynolds v Haiduk, 120 AD3d 656 [2014]; HCA Equip. Fin., LLC v Mastrantone, 118 AD3d 850 [2014]; J.F.J. Fuel, Inc. v Tran Camp Contr. Corp., 105 AD3d 908 [2013]). Since the order appealed from was entered upon the plaintiff‘s default in opposing the motion, the appeal must be dismissed (see Lumbermen‘s Mut. Cas. Co. v Fireman‘s Fund Am. Ins. Co., 117 AD2d 588 [1986]). Skelos, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.