Turner v. Owens Funeral Home, Inc. , 149 A.D.3d 639 ( 2017 )

Turner v Owens Funeral Home, Inc. (2017 NY Slip Op 03128)

Turner v Owens Funeral Home, Inc.

2017 NY Slip Op 03128

Decided on April 25, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 25, 2017
Friedman, J.P., Richter, Feinman, Gische, Gesmer, JJ.

3823N

[*1] Shatima Turner, et al., 20229/12E Plaintiffs-Appellants,

v

Owens Funeral Home, Inc., et al., Defendants-Respondents.

C. Robinson & Associates, LLC, New York (W. Charles Robinson of counsel), for appellants. McCarthy & Associates, New York (Eleanor R. Goldman of counsel), for Owens Funeral Home, Inc, Isaiah Owens and Andrew Cleckley, respondents. Decorato Cohen Sheehan & Federico LLP, New York (Anthony Lugara of counsel), for North Shore-Long Island Jewish Medical Center, North Shore-Long Island Jewish Health System, Inc., North Shore-Long Island Jewish Medical Care, PLLC and North Shore-Long Island Jewish Medical Group, respondents.

Appeal from order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered June 30, 2015, which, among other things, granted the hospital defendants' motion and the funeral defendants' motion for a change of venue from Bronx County to Nassau County, unanimously dismissed, without costs.

Because plaintiffs did not submit any opposition to the motions to change venue, and the order granting the motions was entered without consideration of any arguments by plaintiffs, whether oral or written, the order was entered upon plaintiffs' default, and is not appealable (see CPLR 5511; Liberty Community Assoc., LP v DeClemente, 139 AD3d 532, 532 [1st Dept 2016]; cf. Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695, 696 [2d Dept 2014] [order was not entered upon the respondent's default where, among other things, the court addressed the arguments presented by the respondent in her oral opposition to the motion]).

Plaintiffs' arguments addressed to orders that denied their motions for an adjournment and to reargue are not properly before this Court on this appeal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 25, 2017

CLERK