Bernstein v. Zawaski

Appellate Division of the Supreme Court of New York

Bernstein v. Zawaski

32 A.D.2d 762, 301 N.Y.S.2d 692, 1969 N.Y. App. Div. LEXIS 3720

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

DecidedJune 17, 1969

StatusPublished

This text of 32 A.D.2d 762 (Bernstein v. Zawaski) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bernstein v. Zawaski, 32 A.D.2d 762, 301 N.Y.S.2d 692, 1969 N.Y. App. Div. LEXIS 3720 (N.Y. Ct. App. 1969).

Pincite

Opinion

Appeal dismissed without pre-

an appellants at Special to vacate the ex parte order entered January 29, 1969 striking their answer and directing an assessment of damages, with $30 coste and disbursements to respondent. When we [763]*763denied plaintiff’s prior motion to dismiss the appeal the record did not disclose sufficient facts from which it could be determined that the appeal was from an ex parte order. It was indicated that the order appealed from had been entered on notice but on defendant’s default. It now appears that this was not the fact. The order had been obtained without any notice to defendants and it is, therefore, unappealable. (See CPLR 5701, subd. [a], par. 2; 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5701.06; Matter of 350 West Forty-Sixth St., 20 A D 2d 685; McCormick v. Mars Assoc., 25 A D 2d 433.) By moving to vacate the order entered January 29, 1969, a record can be made in which appellants may proffer the excuse, if any, for their failure to comply with the order dated December 26, 1968. Concur— Capozzoli, J. P., Tilzer, McGivern, Markewich and Nunez, JJ.

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Appeal dismissed without pre-

an appellants at Special to vacate the ex parte order entered January 29, 1969 striking their answer and directing an assessment of damages, with $30 coste and disbursements to respondent. When we [763]*763denied plaintiff’s prior motion to dismiss the appeal the record did not disclose sufficient facts from which it could be determined that the appeal was from an ex parte order. It was indicated that the order appealed from had been entered on notice but on defendant’s default. It now appears that this was not the fact. The order had been obtained without any notice to defendants and it is, therefore, unappealable. (See CPLR 5701, subd. [a], par. 2; 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5701.06; Matter of 350 West Forty-Sixth St., 20 A D 2d 685; McCormick v. Mars Assoc., 25 A D 2d 433.) By moving to vacate the order entered January 29, 1969, a record can be made in which appellants may proffer the excuse, if any, for their failure to comply with the order dated December 26, 1968. Concur— Capozzoli, J. P., Tilzer, McGivern, Markewich and Nunez, JJ.

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Bluebook (online)

32 A.D.2d 762, 301 N.Y.S.2d 692, 1969 N.Y. App. Div. LEXIS 3720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernstein-v-zawaski-nyappdiv-1969.