Henry v. Gutenplan

197 A.D.2d 608, 604 N.Y.S.2d 757, 1993 N.Y. App. Div. LEXIS 9757

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1993
• Status: Published

Opinion

—In an action to recover damages, inter alia, for defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brucia, J.), dated May 30, 1991, which granted the defendant’s motion to vacate a prior order entered upon her default and to dismiss the complaint.

Ordered that the order is affirmed, with costs.

We find that the plaintiff waived any objection to the alleged lack of proper notice of the defendant’s pro se application to vacate an order entered upon her default, by failing to raise the issue before the Supreme Court and by defending such application on the merits (see, Glanzman v Fischman, 183 AD2d 748; Todd v Gull Contr. Co., 22 AD2d 904; Miot v JoCarl Realty Corp., 20 AD2d 664). Further, we find no reason to disturb the court’s implicit finding that plaintiff’s attorney had the authority to bind his client to the stipulation discontinuing the present action (see, Hallock v State of New York, 64 NY2d 224, 230; cf., Rivera v Triple M. Roofing Corp., 116 AD2d 561).

We have examined the plaintiffs remaining contentions and find them to be without merit (see, 22 NYCRR 202.3 [c] [5]). Bracken, J. P., Balletta, Eiber and Copertino, JJ., concur.