2017 NY Slip Op 06116


Appellate Division of the Supreme Court of New York, Third Department.

Attorney(s) appearing for the Case

Johnathan Johnson, Malone, appellant pro se.

Eric T. Schneiderman , Attorney General, Albany ( Zainab A. Chaudhry of counsel), for respondent.

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

Appeal from an order of the Court of Claims (DeBow, J.), entered March 28, 2016, which granted defendant's motion to dismiss the claim.



Claimant, an inmate at Upstate Correctional Facility, filed a claim alleging violations of both the state constitutional guarantee of freedom of religion and a directive of the Department of Corrections and Community Supervision regarding religious practice after he was precluded from registering as adherent to two different religions at the same time. Defendant answered and asserted numerous affirmative defenses, and subsequently moved for dismissal of the claim. Claimant failed to submit any papers in opposition to defendant's motion. The Court of Claims granted the motion and claimant appeals.

Claimant failed to respond in any manner to defendant's motion to dismiss and, therefore, the order is deemed to be entered upon default (see Matter of Susan UU. v Scott VV., 119 A.D.3d 1117, 1118 [2014]). As such, claimant is precluded from appealing the order of dismissal (see CPLR 5511) and his sole remedy is to move to vacate it (see CPLR 5015 [a] [1]; Johnson v State of New York, 140 A.D.3d 1561, 1562 [2016]; Johnson v State of New York, 140 A.D.3d 1558, 1558 [2016]; Matter of Susan UU. v Scott VV., 119 AD3d at 1118). Thus, the appeal must be dismissed.

McCarthy, J.P., Garry, Lynch and Rose, JJ., concur.

ORDERED that the appeal is dismissed, without costs.


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