Podolsky v. Podolsky

119 A.D.2d 740, 501 N.Y.S.2d 150, 1986 N.Y. App. Div. LEXIS 55665

Opinion

— In an action, inter alia, to impose a constructive trust, the plaintiff appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Vaccaro, J.), dated May 3, 1985, as granted a default judgment against him on the defendant Abraham Podolsky’s counterclaims.

Appeal dismissed, with costs, without prejudice to an application at Special Term for leave to vacate the default.

A party may not appeal from a judgment entered upon default. The proper remedy is an application to vacate the default, made to the court which issued the judgment (see, Calvagno v Nationwide Mut. Fire Ins. Co., 110 AD2d 741; Montalvo v Key Indus., 98 AD2d 767). Lazer, J. P., Brown, Weinstein and Niehoff, JJ., concur.