DeLuke v Albany Rest. Supply, Inc.
2007 NY Slip Op 05796 [42 AD3d 601]
July 5, 2007
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, September 12, 2007


Peter J. DeLuke, Appellant, v Albany Restaurant Supply, Inc., Defendant, and Palma Lumber Company, Inc., Respondent.

—[*1] Daniel A. Ehring, Albany, for appellant.

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Erica L. Putnam of counsel), for respondent. Lahtinen, J. Appeal from an order of the Supreme Court (Teresi, J.), entered May 1, 2006 in Albany County, which granted a motion by defendant Palma Lumber Company, Inc. for summary judgment dismissing the complaint against it.

Plaintiff commenced this negligence action alleging that he slipped and fell on snow/ice and injured his back. Following joinder of issue, defendant Palma Lumber Company, Inc. moved for summary judgment dismissing the complaint against it. Plaintiff failed to submit any opposition thereto and Supreme Court, in turn, granted the motion. Plaintiff now appeals.

No appeal lies here inasmuch as the order appealed from was entered upon the default of plaintiff and, as such, it cannot be said that plaintiff has been aggrieved (see Farhadi-Jou v Key Bank of N.Y., 2 AD3d 1041, 1042 [2003]). Plaintiff's sole remedy was to make a motion to vacate the order in Supreme Court and, if unsuccessful in that endeavor, appeal to this Court from the order denying that motion (see State Empls. Fed. Credit Union v Starke, 274 [*2]AD2d 656, 658 [2000]). Accordingly, this appeal must be dismissed.

Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur. Ordered that the appeal is dismissed, with costs.