ELRAC, LLC v Healthy Way Acupuncture, P.C., 2016 NY Slip Op 02773 [138 AD3d 776]

April 13, 2016

Appellate Division, Second Department

[*1]

ELRAC, LLC, Respondent,

v

Healthy Way Acupuncture, P.C., Appellant.

Gary Tsirelman, P.C., Brooklyn, NY (Daniel Grace and David M. Gottlieb of counsel), for appellant.

Lawrence N. Rogak, LLC, Oceanside, NY, for respondent.

In an action for a judgment declaring that the defendant has no right to receive payment for certain no-fault claims submitted to the plaintiff, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Greco, Jr., J.), dated October 21, 2013, which, upon an order of the same court dated August 27, 2013, and upon its failure to produce a witness for deposition or disclose certain documents on or before a date certain as directed by that order, struck its answer and declared that it had no right to receive payment for certain no-fault claims submitted to the plaintiff.

Ordered that the appeal is dismissed, with costs.

No appeal lies from an order or judgment granted upon the default of the appealing party ( see CPLR 5511; Yuan v Kaplan , 129 AD3d 714 [2015]). Since the order and judgment appealed from was entered upon the defendant’s default, the appeal must be dismissed ( see Yuan v Kaplan , 129 AD3d at 714; Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Am. Ins. Co. , 117 AD2d 588 [1986]). Mastro, J.P., Austin, Maltese and Barros, JJ., concur..