Federation of Puerto Rican Organizations of Brownsville, Inc. v. Mateo

235 A.D.2d 326, 652 N.Y.S.2d 954, 1997 N.Y. App. Div. LEXIS 639

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1997
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County (Ira Gammerman, J.), entered April 4, 1996, which denied defendants’ motion to reargue, denominated a motion to vacate a default, unanimously dismissed as taken from a nonappealable order, without costs.

Although denominated a motion to vacate a default, defendants’ motion was, in actuality, one to reargue the prior order that had conditionally struck their answer pursuant to CPLR 3126 (3), rendering the instant order nonappealable (see, Berman v Szpilzinger, 180 AD2d 612). In any event, if we were to review, we would find that defendants provided neither a reasonable excuse for their failure to comply with the conditional order nor an affidavit of merit by one with personal knowledge of the facts (see, Becerril v Skate Way Roller Rink, 184 AD2d 365, 366). Concur—Williams, J. P., Tom, Mazzarelli and Andrias, JJ.