In re the Foreclosure of Tax Liens

91 A.D.3d 1132, 936 N.Y.2d 763

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 2012
• Status: Published

Opinion

Rose, J.

Initially, we must dismiss respondent’s appeal from the December 2008 order granting petitioner’s motion for summary judgment upon his default (see CPLR 5511). County Court appropriately treated respondent’s failure to formally oppose the motion as a default, and his only recourse was to move to vacate the order (see M & C Bros., Inc. v Torum, 75 AD3d 869, 870 [2010]; Mortgage Elec. Registration Sys., Inc. v Schuh, 48 AD3d 838, 840 [2008], appeal dismissed 10 NY3d 951 [2008]). Further, contrary to respondent’s argument, it was not error to prohibit his rental agent from appearing on his behalf (see Whitehead v Town House Equities, Ltd., 8 AD3d 369, 370 [2004]).

Nor did County Court err by denying respondent’s motion to vacate the default. The motion papers were insufficient because they failed to proffer both a reasonable excuse for the default and a meritorious defense in the underlying proceeding (see CPLR 5015 [a] [1]; Matter of Clinton County [Miner], 39 AD3d 1015, 1016 [2007]). Finally, respondent’s remaining claims are either unpreserved or cannot be reviewed because they are based on material outside the record on appeal (see Gagen v Kipany Prods., 289 AD2d 844, 845 [2001]; Ughetta v Barile, 210 AD2d 562, 564 [1994], lv denied 85 NY2d 805 [1995]).

Mercure, A.P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the appeal from the order entered December 8, 2008 is dismissed, without costs. Ordered that the order entered November 23, 2009 is affirmed, without costs.