Wiener v. Iwachiw

22 A.D.3d 747, 802 N.Y.S.2d 625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 2005
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Suffolk County (Molia, J.), entered December 4, 2000, which, upon his default in appearing at trial, inter alia, dissolved the parties’ marriage and distributed the marital estate.

Ordered that the appeal is dismissed, without costs or disbursements, as no appeal lies from a judgment entered upon the default of an appealing party (see CPLR 5511; Matter of Porscha Monique J., 21 AD3d 415 [2005]).

The defendant failed to appear for continued trial proceedings on October 8, 1999. After the plaintiff rested, she requested that the Supreme Court “make a trial decision on this matter.” The Supreme Court issued a written decision dated November 19, 1999. The judgment of divorce recites, inter alia, that it was rendered on the defendant’s failure to appear at trial. In his brief, the defendant argues, among other things, that he did appear but found the courtroom doors locked. Whatever excuses the defendant may proffer for his default must be raised by motion to vacate that default (see CPLR 5015).

We do not reach the defendant’s remaining contentions in light of our determination. S. Miller, J.P., Ritter, Rivera and Skelos, JJ., concur.