Putrino-Weiser v. Sharf

May 10, 2000
Versions:272 A.D.2d 894
707 N.Y.S.2d 917
2000 N.Y. App. Div. LEXIS 5361

—Appeal unanimously dismissed without costs. Memorandum: No appeal lies from an order entered on default and thus the appeal must be dismissed (see, CPLR 5511; Curry v Roman, 217 AD2d 314, 318, Iv denied 88 NY2d 804). Although the order does not expressly provide that Supreme Court granted defendants’ motion for summary judgment dismissing the complaint based on plaintiffs’ default, the court stated in its decision on the record that plaintiffs were in default for failing to serve answering papers after three adjournments of the motion. There is no inconsistency between the order, which provides that the dismissal was “on the merits”, and the decision. Defendants met their initial burden by submitting proof in admissible form *895establishing their entitlement to judgment as a matter of law, and plaintiffs failed to respond to the motion (see, Zuckerman v City of New York, 49 NY2d 557, 562). Thus, it is not inconsistent to determine both that plaintiffs are in default and that defendants are entitled to summary judgment on the merits. Plaintiffs’ remedy is to move to vacate the default judgment (see, CPLR 5015 [a]; Hines v Hines, 125 AD2d 946; Morse v Morse, 67 AD2d 750). (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Kehoe and Lawton, JJ.