- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Oberlander v. Kriss
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03449
Background
Plaintiffs, including the Law Office of Frederick M. Oberlander, P.C., commenced this action seeking to recover damages for unpaid legal fees and expenses, and also alleged a violation of Judiciary Law Section 487 against defendants Jody Kriss, Bradley Simon, and Schlam Stone & Dolan, LLP. The original complaint named Kriss and Michael Ejekam; the amended complaint added Simon and Schlam Stone & Dolan.
Defendants moved under CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. Plaintiffs did not oppose the motion. Supreme Court, Suffolk County (George Nolan, J.), granted the defendants’ unopposed motion to dismiss. Plaintiffs appealed.
Holding
The Appellate Division, Second Department, dismissed the appeal, with costs. The Court applied the settled rule under CPLR 5511 that “no appeal lies from an order made upon the default of the appealing party.” Because the plaintiffs failed to oppose the dismissal motion in Supreme Court, the resulting order was entered on their default. The proper procedure for the defaulting party is to move to vacate the default and, if necessary, appeal the denial of that application, citing Feldman v. Feldman, 185 AD3d 552, 554, and Weaver v. Hatem, 241 AD3d 1388.
Takeaways
This decision applies the fundamental procedural rule that a party who defaults on a motion cannot directly appeal from the resulting order. Instead, the defaulting party must first move in the trial court to vacate the default, demonstrating a reasonable excuse for the default and a potentially meritorious position. Only if that motion is denied can the party then appeal the denial. This two-step process ensures that trial courts have the first opportunity to evaluate the circumstances of the default, which is a fact-intensive inquiry not well-suited to initial appellate review.
Why It Matters
Practitioners must understand that failing to oppose a motion to dismiss is a consequential procedural default that limits appellate options. An attorney who misses a filing deadline or fails to submit opposition papers cannot simply appeal the resulting adverse order. This case is particularly notable because the defaulting party is itself a law office and attorney, demonstrating that even legal professionals can fall victim to this procedural trap. The lesson is clear: timely oppose motions or promptly move to vacate any resulting default before attempting appellate relief.