State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 30, 2016 521060
________________________________
JOHNATHAN JOHNSON,
Appellant,
v
MEMORANDUM AND ORDER
STATE OF NEW YORK,
Respondent.
________________________________
Calendar Date: May 25, 2016
Before: Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.
__________
Johnathan Johnson, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.
__________
Egan Jr., 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 that he had been denied, among
other things, certain prescribed medication, a medical
examination, access to his legal mail and legal forms from the
law library. Defendant answered, asserted numerous affirmative
defenses and, in 2015, moved to dismiss 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- 521060
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
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 failed to move to vacate the
default order, his appeal is not properly before us.
Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court