You are here: / / No Appeal Lies from an Order Entered Upon a Default
,

No Appeal Lies from an Order Entered Upon a Default

The Fourth Department noted that no appeal lies from an order entered upon a default. The only remedy is a motion to vacate the default order:

Plaintiff appeals from an order granting the respective motion and cross motions of defendants seeking summary judgment dismissing the second amended complaint against them.  It is undisputed that plaintiff failed to oppose the motion and cross motions or to appear on the return date thereof, and thus we deem the order to be entered upon plaintiff’s default… . We therefore dismiss the appeal from the order inasmuch as no appeal lies from an order entered on default … .  The fact that Supreme Court, upon plaintiff’s default, granted the motion and cross motions on the merits … is of no moment inasmuch as no appeal lies from an order entered on default.  “[I]t is not inconsistent to determine both that plaintiff[ is] in default and that defendants are entitled to summary judgment on the merits.  Plaintiff[’s] remedy is to move to vacate the default [order]”… .  Britt…v Buffalo Municipal Housing Authority…, 977, 4th Dept 9-27-13

 

You might also like
DWI COUNTS WERE LESSER INCLUSORY COUNTS OF VEHICULAR MANSLAUGHTER AND SHOULD HAVE BEEN DISMISSED, ERROR DID NOT REQUIRE PRESERVATION (FOURTH DEPT).
PLAINTIFF RENTED DEFENDANT’S COTTAGE AND WAS INJURED WHEN THE DECK COLLAPSED; PLAINTIFF’S CAUSES OF ACTION BASED UPON RES IPSA LQUITUR AND VICARIOUS LIABILITY FOR AN INDEPENDENT CONTRACTOR WHO CONSTRUCTED THE DECK SHOULD HAVE SURVIVED SUMMARY JUDGMENT; A PROPERTY OWNER HAS A NONDELEGABLE DUTY TO THE PUBLIC TO KEEP THE PREMISES SAFE, AN EXCEPTION TO THE GENERAL RULE THAT A PROPERTY OWNER WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF AN INDEPENDENT CONTRACTOR (FOURTH DEPT).
CAUSE OF FALL SUFFICIENTLY DEMONSTRATED WITH CIRCUMSTANTIAL EVIDENCE, DEFENSE MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED.
Elements of Malicious Prosecution, False Arrest, False Imprisonment, Libel and Slander Explained
Proof of Normal Notification Procedure Sufficient to Demonstrate Defendant Was Notified of Lead-Paint-Injury Exclusion in Policy
PLAINTIFF ENTITLED TO RECOVER FROM DEFENDANT THE COST OF ALTERNATE SERVICE BECAUSE DEFENDANT DID NOT RETURN THE ACKNOWLEDGMENT OF RECEIPT (CPLR 312-a) UPON BEING SERVED BY MAIL (FOURTH DEPT).
FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT).
Claimant’s Inculpatory Statement Demonstrated to Be Product of Police Misconduct

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Resentencing After Original Sentence Expired Violates Double Jeopardy Claus... Business Not Liable for Slip and Fall on Abutting Icy Sidewalk/”Special Use”...