                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: June 30, 2016                       521063
________________________________

JOHNATHAN JOHNSON,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
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Calendar Date:   June 2, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.

                               __________


     Johnathan Johnson, Malone, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.

                               __________


McCarthy, J.P.

      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 certain
prescribed medication and access to the law library, that a
prison official had tampered with his lunch tray and that he had
been served improper meals. 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-                  521063

      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]). The record does not reflect that
claimant moved to vacate the default order, and his appeal from
the default order is not properly before us.

     Garry, Lynch, Devine and Aarons, JJ., concur.



     ORDERED that the appeal is dismissed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
