Imor v. Imor

114 A.D.2d 552, 494 N.Y.S.2d 167, 1985 N.Y. App. Div. LEXIS 53261

Opinion

—Casey, J.

Appeal from a judgment of the Supreme Court granting plaintiff a divorce, entered June 11, 1984 in Columbia County, upon a decision of the court at Trial Term (Connor, J.), without a jury.

Defendant’s appeal herein is from a default judgment of divorce granted to plaintiff. This judgment contains the stipulation and opting-out agreement that defendant attacks on this appeal. An appeal from a judgment granted on default does not lie in favor of the defaulting party. The appropriate procedure is to move to vacate the judgment and, if necessary, appeal from the denial of such motion (Tongue v Tongue, 97 AD2d 638, 639, affd 61 NY2d 809). The appeal should, therefore, be dismissed.

Appeal dismissed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.