        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

977
CA 13-00146
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


CARMEN BRITT AND CARMEN BRITT, AS EXECUTOR OF
THE ESTATE OF LULA BAITY, DECEASED,
PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE
GARBE, BISILOLA F. JACKSON, AS ADMINISTRATOR OF
THE ESTATE OF JERELENE ELIZABETH GIWA, DECEASED,
GRACE MANOR HEALTH CARE FACILITY, INC., DAVID J.
GENTNER, MARY STEPHAN, KATHY RANDALL, TIFFANY
MATTHEWS, AND PHILLIP J. RADOS, M.D.,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


LAW OFFICE OF FRANK S. FALZONE, BUFFALO (RONALD P. HART OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

COLUCCI & GALLAHER, P.C., BUFFALO (JOHN J. MARCHESE OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE
GARBE, AND BISILOLA F. JACKSON, AS ADMINISTRATOR OF THE ESTATE OF
JERELENE ELIZABETH GIWA, DECEASED.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (ELIZABETH G. ADYMY OF
COUNSEL), FOR DEFENDANT-RESPONDENT PHILLIP J. RADOS, M.D.

FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS GRACE MANOR HEALTH CARE FACILITY, INC., DAVID
J. GENTNER, MARY STEPHAN, KATHY RANDALL AND TIFFANY MATTHEWS.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered October 18, 2012. The order granted the
respective motion and cross motions of defendants for summary judgment
dismissing the second amended complaint.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: Plaintiff appeals from an order granting the
respective motion and cross motions of defendants seeking summary
judgment dismissing the second amended complaint against them. It is
undisputed that plaintiff failed to oppose the motion and cross
motions or to appear on the return date thereof, and thus we deem the
order to be entered upon plaintiff’s default (see generally Armele v
                                 -2-                           977
                                                         CA 13-00146

Moose Intl., 302 AD2d 986, 987). We therefore dismiss the appeal from
the order inasmuch as no appeal lies from an order entered on default
(see CPLR 5511; Calaci v Allied Interstate, Inc. [appeal No. 2], 108
AD3d 1127, 1128; Putrino-Weiser v Sharf, 272 AD2d 894, 894). The fact
that Supreme Court, upon plaintiff’s default, granted the motion and
cross motions on the merits and on the grounds of res judicata and
collateral estoppel is of no moment inasmuch as no appeal lies from an
order entered on default. “[I]t is not inconsistent to determine both
that plaintiff[ is] in default and that defendants are entitled to
summary judgment on the merits. Plaintiff[’s] remedy is to move to
vacate the default [order]” (Putrino-Weiser, 272 AD2d at 895).

     We note, however, that the appeal from the final order brings up
for our review “matters which were the subject of contest” before the
court (James v Powell, 19 NY2d 249, 256 n 3; see Lewis v Lewis, 183
AD2d 875, 875; cf. Tun v Aw, 10 AD3d 651, 651-652), i.e., the
propriety of the nonfinal order granting the respective cross motions
of defendants seeking leave to amend their answers to allege the
affirmative defenses of res judicata and collateral estoppel.
Inasmuch as the amended answers alleged new affirmative defenses that
served as one of the two bases for the final order granting the motion
and cross motions for summary judgment, the nonfinal order
“necessarily affect[s] the final [order]” (Oakes v Patel, 20 NY3d 633,
645). We agree with plaintiff that the court abused its discretion in
granting those parts of the cross motions with respect to the
affirmative defense of res judicata. The cross motions seeking leave
to amend the respective answers were based upon the dismissal of a
federal court action arising from the underlying facts at issue here,
namely, the alleged wrongful removal of plaintiff’s decedent from her
home for medical treatment and the alleged continued wrongful
confinement of plaintiff’s decedent. Because the federal court did
not exercise its pendent jurisdiction over the related state law
claims, but instead dismissed those claims without prejudice, the
ultimate dismissal of the federal action did not have res judicata
effect with respect to the instant action (see McLearn v Cowen & Co.,
60 NY2d 686, 688; cf. Troy v Goord, 300 AD2d 1086, 1087). We
nevertheless conclude that, because the court granted defendants
summary judgment on a ground other than res judicata, i.e., on the
merits, and that order entered on default is not properly before us on
appeal (see CPLR 5511), there is no action pending and thus “a
favorable ruling would not entitle [plaintiff] to any particular
relief” (Matter of Ameillia R.R. [Megan SS.], 95 AD3d 1525, 1526). We
therefore dismiss the appeal as moot insofar as it brings up for
review the prior nonfinal order granting defendants’ respective cross
motions for leave to amend their answers.

     Finally, plaintiff relies on matters outside of the record on
appeal in support of the contention in her brief that the court abused
its discretion in denying her request for an adjournment of the return
date of defendants’ motion and cross motions seeking summary judgment,
                                 -3-                          977
                                                        CA 13-00146

and thus it is not properly before us (cf. Tun, 10 AD3d at 651-652).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
