You are here: / / NO APPEAL LIES FROM AN ORDER ISSUED ON DEFAULT, A MOTION TO VACATE IS THE...
, ,

NO APPEAL LIES FROM AN ORDER ISSUED ON DEFAULT, A MOTION TO VACATE IS THE ONLY REMEDY; NO APPEAL LIES FROM AN ORDER ISSUED ON CONSENT (FIRST DEPT).

The First Department, dismissing the appeal in this custody case, determined (1) no appeal lies from an order issued on mother’s default, and (2) no  appeal lies from an order entered with mother’s consent:

Because the fact-finding order was issued on the mother’s default, it is not appealable as of right and her remedy was to move to vacate (CPLR 5511 …). Although the mother appeared on the final date of the inquest after petitioner’s witnesses had testified, she was not present during the majority of the fact-finding hearing, and her counsel was not authorized to proceed in her absence … . The mother also did not offer any evidence or seek to testify.

Furthermore, no appeal lies from the dispositional order, as it was entered on the mother’s consent and she is therefore not an aggrieved party under CPLR 5511 … .  Matter of P. A. (Joseph M.), 2023 NY Slip Op 03432, First Dept 6-27-23

Practice Point: No appeal lies from an order issued on default. The only available remedy is a motion to vacate the default.

Practice Point: No appeal lies from an order issued on consent because the consenting party is not “aggrieved.”

 

You might also like
PLAINTIFF WAS STRUCK BY A CABLE WHICH WHIPLASHED WHEN A TRUCK RAN INTO IT; THE INDUSTRIAL CODE PROVISION REQUIRING SAFETY MEASURES WHEN WORKING NEAR TRAFFIC APPLIED; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
JUDGE SHOULD NOT HAVE, SUA SPONTE, AFTER A COMPLIANCE CONFERENCE, ISSUED A PRECLUSION ORDER BECAUSE THERE WAS NO MOTION PENDING (FIRST DEPT).
THE VALIDATING PETITION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE PETITION WAS NOT VERIFIED; THE FAILURE TO RAISE THE OBJECTION WITH DUE DILIGENCE WAIVED IT; ALTHOUGH THE LANGUAGE IN THE PETITION WAS NOT EXACTLY THAT IN CPLR 3021, THE PETITION WAS IN FACT VERIFIED (SECOND DEPT).
Liquor Authority Properly Complied with the Requirements for Issuing a Liquor License When Three or More Licensed Premises Are Located Within 500 Feet
DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT).
DEFENDANTS’ MOTION TO FILE A LATE ANSWER PURSUANT TO CPLR 3012 AFTER A DEFAULT IN THIS FORECLOSURE PROCEEDING WAS PROPERLY DENIED, FIVE FACTORS TO BE CONSIDERED EXPLAINED, ALLEGATION DEFENDANTS WERE CHEATED WAS NOT A DEFENSE (FIRST DEPT).
THE ONLY EVIDENCE OF DEFENDANT’S PARTICIPATION IN THE SHOOTING WAS DNA ON A HANDGUN; THE EVIDENCE OF MURDER AND POSSESSION OF A WEAPON WAS LEGALLY INSUFFICIENT; THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; INDICTMENT DISMISSED (FIRST DEPT).
State’s Decrease in Its Contribution to Judges’ Health Care Insurance Violated the Compensation Clause of the NYS Constitution

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

PLAINTIFF’S DECEDENT WAS SHOT IN A DARK AREA OF DEFENDANT NEW YORK CITY... DEFENDANT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN ALLOWED TO AMEND HIS...