Czarnik v. Urban

10 A.D.3d 627, 781 N.Y.S.2d 610, 2004 N.Y. App. Div. LEXIS 10780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 13, 2004
• Status: Published

Opinion

In an action for the repayment of loans, the defendant appeals from (1) an order of the Supreme Court, Queens County (Price, J.), dated April 4, 2003, which denied his motion to vacate an order of the same court dated December 20, 2002, which, upon his default, granted the plaintiffs’ motion to strike his answer, and (2) a judgment of the same court dated July 1, 2003, which, following an inquest, is in favor of the plaintiffs and against him in the principal sum of $184,668.

Ordered that the appeal from the order dated April 4, 2003, is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

The appeal from the intermediate order dated April 4, 2003, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order dated April 4, 2003, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

To obtain relief from his default, the defendant was required to establish both a reasonable excuse therefor and a meritorious defense to the action (see Taylor v Saal, 4 AD3d 467 [2004]; Williams El. Co. v Grafi, 277 AD2d 311 [2000]). The defendant established neither. Accordingly, the Supreme Court providently exercised its discretion in denying the defendant’s motion to vacate the court’s earlier order, dated December 20, 2002, which, upon the defendant’s default, granted the plaintiffs’ motion to strike his answer.

The defendant’s remaining contentions are without merit. Luciano, J.P., Mastro, Spolzino and Skelos, JJ., concur.