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Appeal, Rather than a Motion to Vacate a Default Judgment, Is the Proper Remedy Where a Party Appears to Contest Motion to Enter a Default Judgment

The Second Department noted that the prohibition of an appeal from an ordered entered upon default does not apply when a party appears to contest a motion to enter a default judgment:

Although CPLR 5511 prohibits an appeal from an order entered upon default, that provision does not apply where, as here, a party appears and contests a motion for leave to enter a default judgment … . Under the circumstances [of this case], the proper remedies were either an appeal from the default order, a timely motion for reargument or renewal, or an appeal from a judgment entered after the inquest on damages, which would bring up for review the default order … . Thus, a motion to vacate the default order was procedurally improper and should not have been entertained … . Cole-Hatchard v Eggers, 2015 NY Slip Op 07466, 2nd Dept 10-14-15

 

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