Cooper v. Spanakos

196 A.D.2d 797, 602 N.Y.S.2d 21

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 9, 1993
• Status: Published

Opinion

In a proceeding to invalidate a petition designating Richard Taylor as a candidate in a primary election to be held on September 14, 1993, for the nomination of the Democratic Party as its candidate for the public office of New York City Council Member from the 36th City Council District, the appeal is from a judgment of the Supreme Court, Kings County (Garry, J.), dated August 6, 1993, which granted the application and invalidated the petition. The notice of appeal from a purported decision dated August 20, 1993, which, in fact, was a refusal to sign an order to show cause why Richard Taylor’s default should not be vacated, is deemed an application for appellate review pursuant to CPLR 5704.

Ordered that the appeal from the judgment dated August 6, 1993, is dismissed, without costs or disbursements; and it is further,

Ordered that the application pursuant to CPLR 5704 is denied, without costs or disbursements.

The appellant is precluded from appealing from the judgment dated August 6, 1993, because the judgment was entered upon his default in appearing before the Referee at the hearing on the application. By order to show cause dated August 20, 1993, the appellant sought vacatur of his default and the Supreme Court declined to sign that order. We treat the purported appeal therefrom as an application for appellate review pursuant to CPLR 5704, and deny it on the ground that the appellant has failed to proffer any excuse for his default. Sullivan, J. P., Rosenblatt, O’Brien and Copertino, JJ., concur.