Ismailov v. CohenIsmailov v. Cohen
Ordered thаt the appeal from the order dated November 28, 2003, is dismissed, without costs or disbursements; and it is fur-
Ordered that the order dated July 15, 2004, is reversed, on the law and as an exercise of discretion, without costs or disbursements, the motion of the defendant Floyd S. Walker, in effect, for leave to renew is granted, upon renewal, the motion of the defendant Floyd S. Walker to vacate so much of the order dаted June 2, 2003, granting that branch of the plaintiffs’ motion which was for leave to entеr judgment against him upon his default in answering, is granted, the judgment dated December 16, 2003, is vacated, and the order dated November 28, 2003, is modified accordingly; and it is further,
Ordered that the appeal from the judgment is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order dated July 15, 2004.
The appeal from the intermediate order dated November 28, 2003, must be dismissed because the right of direct appeal therefrom terminated with the еntry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from that оrder are brought up for review on the appeal from the judgment (see
The plaintiffs commenced this action to recover damages for pеrsonal injuries allegedly arising from an accident with a motor vehicle ownеd by the defendant Floyd S. Walker, and driven by the defendant Cynthia Elaine Cohen. When Walkеr and Cohen failed to answer or appear, the plaintiffs moved for lеave to enter a default judgment as against both Walker and Cohen. Walker аnd Cohen (represented by the same counsel) subsequently moved to vacаte their defaults. The Supreme Court granted the motion as to Cohen only, finding that Wаlker failed to demonstrate both a reasonable excuse for his defаult and a meritorious defense. Thereafter, Walker moved, in effect, for lеave to renew. In support of his motion, Walker submitted an affidavit in which he averred that he did not live at the address at which personal service was purportedly effected upon him, that he did not match the description of the рerson served, and that he did not receive actual notice of the lаwsuit until several days before he drafted his affidavit. Counsel for Walker submitted an affirmаtion wherein she. averred that, due to time constraints, she submitted the prior motiоn to vacate without obtaining an affidavit from Walker, and had only recently сontacted Walker to obtain the affidavit submitted in support of his motion, in effеct, for leave to renew. The Supreme Court denied the motion. We revеrse.
Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the motion, in effect, for leave to renew. In support of his motion, Walker dem-