Tejeda v. Woodycrest Realty, L.L.C.

39 A.D.3d 210, 831 N.Y.S.2d 709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 2007
• Status: Published

Opinion

Appeal from order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered July 19, 2005, which denied plaintiff infant’s motion, upon his failure to appear on the return date, to vacate a prior order, same court (Michael DeMarco, J.), entered on or about March 26, 2001, compromising plaintiffs claims, and to restore the action to the calendar, unanimously dismissed, without costs. Appeal from a purported order, same court and Justice, entered October 6, 2005, which purportedly denied plaintiffs motion to vacate the order of July 19, 2005, unanimously dismissed, without costs, as taken from a nonappealable refusal to sign an ex parte order to show cause to vacate the July 19, 2005 order, such appeal deemed an application pursuant to CPLR 5704 (a) to review such refusal, the order to show cause granted, plaintiff directed to personally serve a copy of the order to show cause on defendant’s attorneys within 20 days of the date of this order, and the order to show cause made returnable 14 days from the date of such service.

No appeal lies from either an order entered on default (CPLR 5511) or a refusal to grant an order applied for without notice (CPLR 5701 [a] [2]). However, such refusal may be reviewed by way of an application pursuant to CPLR 5704 (a). We grant plaintiff’s order to show cause and direct Supreme Court to decide plaintiffs motion to vacate his default. Concur—Andrias, J.E, Marlow, Gonzalez, Sweeny and Catterson, JJ.