366 Fourth Street Corp. v. Foxfire Enterprises, Inc.

141 A.D.2d 789, 529 N.Y.S.2d 1018, 1988 N.Y. App. Div. LEXIS 7157

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1988
• Status: Published

Opinion

In an action to foreclose a mortgage and for the appointment of a receiver with regard to a certain parcel of real property, the defendant Foxfire Enterprises, Inc. (hereinafter Foxfire) appeals from an order of the Supreme Court, Kings County (Held, J.), entered August 4, 1987, which, upon Foxfire’s default, (1) granted the plaintiff’s motion to appoint a Referee to compute the amount due on the mortgage, and (2) denied Foxfire’s cross motion to deem its answer and counterclaim served nunc pro tunc.

Ordered that the appeal is dismissed, with costs.

The record reveals that the defendant Foxfire failed to timely serve its answer and further failed to appear in court to oppose the plaintiff’s motion and to support its own cross motion, despite the fact that the Supreme Court twice adjourned the matter at Foxfire’s request and cautioned that an additional delay would not be tolerated, that that adjournment was final against Foxfire, and that in the event counsel for Foxfire was unable to appear, Foxfire should designate another attorney to appear in its behalf. Upon Foxfire’s failure to appear on the final adjourned date, the court issued the order which Foxfire challenges on the present appeal. The appeal must be dismissed, as no appeal lies from an order entered upon the default of the appellant (see, Serafimovs v Serafimovs, 134 AD2d 422; Podolsky v Podolsky, 119 AD2d 740; Bohlman v Bohlman, 114 AD2d 832, lv dismissed 67 NY2d 606, 904). Mangano, J. P., Thompson, Sullivan and Harwood, JJ., concur.