Page v. Watson

Appellate Division of the Supreme Court of New York

Page v. Watson

304 A.D.2d 382, 756 N.Y.S.2d 748, 2003 N.Y. App. Div. LEXIS 3845

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 10, 2003

StatusPublished

Cited by3 cases

This text of 304 A.D.2d 382 (Page v. Watson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Page v. Watson, 304 A.D.2d 382, 756 N.Y.S.2d 748, 2003 N.Y. App. Div. LEXIS 3845 (N.Y. Ct. App. 2003).

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Opinion

Appeal from order, Supreme Court, Bronx County (Bertram Katz, J.), entered October 24, 2001, which granted judgment in favor of defendant pursuant to 22 NYCRR 202.27 upon plaintiffs failure to appear at a court conference, in this action for partition and sale of an allegedly commonly owned property, unanimously dismissed, without costs, as taken from a nonappealable order, without prejudice to plaintiff moving before Supreme Court to vacate the default.

No appeal lies from an order entered on default (CPLR 5511). Although plaintiff twice sought to vacate her default, the motion court refused to sign her orders to show cause seeking such relief, and she never sought to have such refusals reviewed by this Court pursuant to CPLR 5704 (a). Nor are such refusals appealable as of right such as might make them reviewable under CPLR 5517 (b). However, in our view, the record evidence in this matter, e.g., the deed of ownership, defendant’s admissions that he and plaintiff owned the premises as tenants in common, plaintiffs counsel’s law office failure, and defendant’s refusal to allow access for plaintiffs court-ordered appraisal, suggests that plaintiff should be accorded a further opportunity to seek adjudication on the merits as indicated. Concur — Tom, J.P., Mazzarelli, Ellerin, Williams and Marlow, JJ.

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Appeal from order, Supreme Court, Bronx County (Bertram Katz, J.), entered October 24, 2001, which granted judgment in favor of defendant pursuant to 22 NYCRR 202.27 upon plaintiffs failure to appear at a court conference, in this action for partition and sale of an allegedly commonly owned property, unanimously dismissed, without costs, as taken from a nonappealable order, without prejudice to plaintiff moving before Supreme Court to vacate the default.

No appeal lies from an order entered on default (CPLR 5511). Although plaintiff twice sought to vacate her default, the motion court refused to sign her orders to show cause seeking such relief, and she never sought to have such refusals reviewed by this Court pursuant to CPLR 5704 (a). Nor are such refusals appealable as of right such as might make them reviewable under CPLR 5517 (b). However, in our view, the record evidence in this matter, e.g., the deed of ownership, defendant’s admissions that he and plaintiff owned the premises as tenants in common, plaintiffs counsel’s law office failure, and defendant’s refusal to allow access for plaintiffs court-ordered appraisal, suggests that plaintiff should be accorded a further opportunity to seek adjudication on the merits as indicated. Concur — Tom, J.P., Mazzarelli, Ellerin, Williams and Marlow, JJ.

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Bluebook (online)

304 A.D.2d 382, 756 N.Y.S.2d 748, 2003 N.Y. App. Div. LEXIS 3845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/page-v-watson-nyappdiv-2003.

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