Masone v. New York City Housing Authority (279 A.D.2d 323, 2001)

—Appeal from order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about November 24, 1999, which, insofar as appealed from, granted, on default, defendant-respondent’s motion for summary judgment dismissing the complaint as against it, unanimously dismissed, without costs.

The motion court’s refusal to consider plaintiffs opposition papers served after the date fixed for their receipt in a written stipulation (CPLR 2214 [c]) constituted a finding of default on the motion, for which plaintiffs remedy is not an appeal but a motion to vacate the default (CPLR 5511; Shannon v City of New York, 275 AD2d 671). Hence, the appeal is dismissed. Since plaintiffs opposition papers appeared to have merit, we grant leave, sua sponte, to plaintiff to move to vacate the default within 30 days of the date of this order. Concur— Nardelli, J. P., Tom, Mazzarelli and Ellerin, JJ.