Zeballos v. Zeballos

Appellate Division of the Supreme Court of the State of New York

Oct 29, 1984

Versions:104 A.D.2d 1033

481 N.Y.S.2d 11

1984 N.Y. App. Div. LEXIS 20469

— In an action to foreclose a mortgage, defendant appeals from an order of the Supreme Court, Westchester County (Buell, J.), entered July 14, 1983, which denied that branch of his motion as sought to vacate a default judgment and *1034so much of that motion as purportedly sought dismissal of the complaint pursuant to CPLR 3215 (subd [c]) for failure to prosecute.

Order affirmed, with costs.

Based on the record submitted, the issue concerning plaintiff’s allegedly untimely pursuit of a default judgment was not raised in defendant’s motion papers to vacate the default and, therefore, may not be considered for the first time on appeal (Brent-Grand v Megavolt Corp., 97 AD2d 783; Arnold v New City Condominiums Corp., 88 AD2d 578, 579). Titone, J. P., Lazer, Bracken and Boyers, JJ., concur.