Lumbermen's Mutual Casualty Co. v. Fireman's Fund American Insurance

117 A.D.2d 588, 498 N.Y.S.2d 59, 1986 N.Y. App. Div. LEXIS 52857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1986
• Status: Published

Opinion

—In an action pursuant to Insurance Law § 3420 (a) (2) to recover on an unsatisfied judgment entered against defendant’s alleged insured, defendant appeals from a judgment of the Supreme Court, Westchester County (Kelly, J.), entered May 3, 1984, upon an order which, upon renewal, awarded summary judgment in favor of plaintiff in the principal sum of $3,622.94.

Appeal dismissed, without costs or disbursements.

Judgment in favor of plaintiff was entered after the court had granted an unopposed motion by plaintiff to renew a prior motion for summary judgment. Although plaintiff characterized the motion as one to reargue, the papers submitted in support of that motion contained factual matters not included in the prior motion. The motion was therefore one to renew. Whether deemed a motion to renew or a motion to reargue, however, the ultimate relief sought was summary judgment in favor of plaintiff. Defendant defaulted in opposing this motion. No appeal lies from an order or judgment granted upon the default of the aggrieved party (CPLR 5511; Flake v Van Wagenen, 54 NY 25; Manhattan 30 Corp. v Nassau County, 100 AD2d 576). This rule applies as well to judgments entered pursuant to orders granted upon default (Lapof v Postulnick, 232 App Div 832; Wolfensteller v Frank, 50 AD2d 846). Defendant’s remedy is to seek to open its default and vacate the judgment appealed from (Calvagno v Nationwide Mut. Fire Ins. Co., 110 AD2d 741; Montalvo v Key Indus., 98 AD2d 767). Mollen, P. J., Thompson, Rubin and Kunzeman, JJ., concur.