Seodarsan v. Latchana

169 A.D.3d 1078

92 N.Y.S.3d 896 (Mem)

Shivraj SEODARSAN, et al., Respondents,

v.Haricharan LATCHANA, Appellant.

2017–09374

Index No. 705450/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 2, 2018

February 27, 2019

James C. Locantro, Babylon, NY, for appellant.

Daniel Tanon, Ozone Park, NY, for respondents.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to enforce an easement and to recover damages for breach of the easement, the defendant appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered July 31, 2017. The order granted the plaintiffs' unopposed motion, inter alia, for summary judgment on the complaint and for an inquest on the issue of damages.

ORDERED that the appeal is dismissed, with costs.

The plaintiffs and the defendant own adjoining properties. The plaintiffs commenced this action alleging that the defendant had encroached upon a recorded easement that runs between the parties' properties and was intended to be used as a common driveway. The plaintiffs asserted causes of action seeking to enforce the easement and for damages incurred from the defendant's encroachment. The plaintiffs moved, inter alia, for summary judgment on the complaint and for an inquest on the issue of damages. The Supreme Court granted the plaintiffs' unopposed motion and the defendant appeals.

No appeal lies from an order made upon the default of the appealing party (see CPLR 5511 ; Goss v. DiMarco , 145 A.D.3d 861, 862, 42 N.Y.S.3d 829 ; Morgan Stanley Mtge. Loan Trust [2007–8XS] v. Harding , 141 A.D.3d 511, 511, 35 N.Y.S.3d 235 ). Consequently, since the defendant did not submit papers in opposition to the plaintiffs' motion, the defendant's appeal must be dismissed (see Gitzis v. Isakov , 150 A.D.3d 1085, 1085, 52 N.Y.S.3d 659 ; Goss v. DiMarco , 145 A.D.3d at 862, 42 N.Y.S.3d 829 ; T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp. , 139 A.D.3d 1038, 1038, 30 N.Y.S.3d 839 ).

We decline the plaintiffs' request for the imposition of sanctions based upon the defendant's allegedly frivolous conduct in prosecuting this appeal (see Matter of Talbot , 134 A.D.3d 726, 727, 20 N.Y.S.3d 580 ; Reynolds v. Haiduk , 120 A.D.3d 656, 657, 990 N.Y.S.2d 873 ).

MASTRO, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.