                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: June 30, 2016                       521062
________________________________

JOHNATHAN JOHNSON,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   May 31, 2016

Before:   Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                               __________


     Johnathan Johnson, Malone, appellant pro se.

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

                               __________


Egan Jr., J.

      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, among
other things, certain prescribed medication and access to his
legal mail. Defendant answered, asserted numerous affirmative
defenses and, in 2015, moved to dismiss 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.

      It is well settled that no appeal is permitted from an
order entered upon a party's default (see CPLR 5511) – the sole
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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
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]). As claimant failed to move to vacate the
default order, his appeal is not properly before us.

     Lahtinen, J.P., Lynch, Devine and Mulvey, JJ., concur.



     ORDERED that the appeal is dismissed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
