Credit Acceptance Corp. v. Milord

126 A.D.3d 746, 5 N.Y.S.3d 254

Opinion

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Battaglia, J.), dated November 21, 2013, which granted that branch of his unopposed motion which was to vacate a judgment of the same court entered September 26, 2013, upon his failure to appear or answer the complaint, and denied that branch of his unopposed motion which was, in effect, for summary judgment on his proposed counterclaims.

Ordered that the appeal from so much of the order as granted that branch of the defendant’s motion which was to vacate the judgment is dismissed, as the defendant is not aggrieved by that portion of the order (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.

By order to show cause dated October 28, 2013, the defendant moved to vacate a judgment entered against him upon his failure to appear in this action or answer the complaint and, in effect, for summary judgment on his proposed counterclaims. The motion was unopposed. The Supreme Court properly denied that branch of the defendant’s motion which was, in effect, for summary judgment on his proposed counterclaims, since the plaintiff did not have an opportunity to reply to the counterclaims (see CPLR 3012 [a]; 3212 [a]; 65 N. 8 St. HDFC v Suarez, 18 AD3d 732, 733 [2005]).

The defendant is not aggrieved by the portion of the order which granted that branch of his motion which was to vacate the judgment, and his appeal from that portion of the order must be dismissed (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 544-545 [1983]; Emanuel v Broadway Mall Props., 293 AD2d 708, 709 [2002]).

The defendant’s remaining contentions are without merit.

Dillon, J.P., Chambers, Austin and LaSalle, JJ., concur.