Gillard-Holmes v. Persigo

The plaintiffs’ appeal taken as of right from the order dated November 9, 1994, is dismissed since no appeal lies from an order entered upon the default of the appealing party (see, Katz v Katz, 68 AD2d 536). In addition, the order is not appealable as of right as it determined a motion that was not made on notice (see, CPLR 5701 [b]).

The appeal from the order dated December 14, 1994, is also dismissed. The order dated November 9, 1994, dismissed the plaintiffs’ complaint "without prejudice”. The plaintiffs subsequently commenced other actions arising out of the same facts and seeking the same relief in the Supreme Court, Nassau County. Thus, the appeal from the order dated December 14, 1994, is dismissed as academic. Balletta, J. P., O’Brien, Ritter, Pizzuto and Altman, JJ., concur.