State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 30, 2016 521061
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JOHNATHAN JOHNSON,
Appellant,
v MEMORANDUM AND ORDER
STATE OF NEW YORK,
Respondent.
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Calendar Date: May 26, 2016
Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.
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Johnathan Johnson, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.
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Aarons, J.
Appeal from an order of the Court of Claims (DeBow, J.),
entered April 23, 2015, which granted defendant's motion to
dismiss the claim.
In 2009, claimant, an inmate at Upstate Correctional
Facility, filed a claim alleging, among other things, that two
prison officials had refused to give him proper meals so that he
could take his prescribed medication. Defendant answered and
asserted numerous affirmative defenses and subsequently sought
dismissal of the claim. After claimant failed to submit any
papers in opposition to defendant's motion, the Court of Claims
granted the motion upon his default and dismissed the claim.
Claimant now appeals.
-2- 521061
It is well settled that no appeal is permitted from an
order entered upon a party's default (see CPLR 5511), the sole
remedy being to move to vacate the default order and, if that
motion is denied, to appeal such denial (see CPLR 5015 [a] [1];
Matter of Susan UU. v Scott VV., 119 AD3d 1117, 1118 [2014];
Matter of Jay v Fischer, 102 AD3d 1021, 1021 [2013]; DeLuke v
Albany Rest. Supply, Inc., 42 AD3d 601, 601 [2007]). Here,
claimant did not file any responsive papers to defendant's
motion, despite evidence in the record establishing that he was
properly served with the motion. Accordingly, the Court of
Claims properly treated claimant's failure to respond to
defendant's motion as a default (see Matter of County of Albany
[Bowles], 91 AD3d 1132, 1133 [2012]; M & C Bros., Inc. v Torum,
75 AD3d 869, 870-871 [2010]). As claimant has failed to move to
vacate the default order, his appeal is not properly before us.
Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court