F. W. Myers & Co. v. Owsley & Sons, Inc.

Apr 22, 1993
Versions:192 A.D.2d 927
597 N.Y.S.2d 178
1993 N.Y. App. Div. LEXIS 4035
Levine, J.

Appeal from an order of the Supreme Court (Plumadore, J.), entered June 21, 1991 in Clinton County, which granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff commenced this action seeking to recover fees for brokerage services rendered to defendant in 1989. In its answer, defendant interposed affirmative defenses raising lack of personal jurisdiction and disputing the amount due. In February 1991, defendant moved for summary judgment on the merits and on the issue of the enforceability of the choice of forum and choice of law clauses in plaintiff’s invoices and credit application. Plaintiff neither appeared in opposition nor filed opposition papers, and Supreme Court granted defendant’s motion for summary judgment dismissing plaintiff’s complaint "in all respects”. Plaintiff now appeals.

New York law unequivocally precludes taking an appeal from a default judgment; the proper remedy is for the defaulting party to move to vacate the default judgment in the court that issued the order and, if the motion is denied, to appeal the order denying the motion (see, CPLR 5511; see also, CPLR 317, 5015 [a] [1]; Lo Cicero v J.F.K. Intl. Airport, 131 AD2d 305; Cygielman v Cygielman, 111 AD2d 1057, 1058; Siegel, NY Prac § 293, at 423 [2d ed]). As the order from which the appeal was taken is nonappealable, we have no occasion to address the parties’ arguments as to whether Supreme Court’s dismissal of the complaint was on the merits or on jurisdictional grounds.

Weiss, P. J., Mikoll, Yesawich Jr. and Crew III, JJ., concur. Ordered that the appeal is dismissed, without costs.