M & C Bros., Inc. v. Torum

• Decision Date: 15 July 2010
• Citation: 75 A.D.3d 869,907 N.Y.S.2d 78
• Court: New York Supreme Court — Appellate Division
• Parties: M & C BROTHERS, INC., Respondent, v. Bradley W. TORUM et al., Appellants, et al., Defendants.

907 N.Y.S.2d 78
75 A.D.3d 869

M & C BROTHERS, INC., Respondent,
v.
Bradley W. TORUM et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

July 15, 2010.

907 N.Y.S.2d 78

Neroni Law Office, Delhi (Tatiana Neroni of counsel), for appellants.

Jonathan S. Follender, P.C., Arkville (Jonathan S. Follender of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, MALONE JR., KAVANAGH and EGAN JR., JJ.

MERCURE, J.

75 A.D.3d 869

Appeal from an order and judgment of the Supreme Court (Peckham, J.), entered January 30, 2009 in Delaware County, which granted plaintiff's motion to strike defendants' answer.

In October 2004, plaintiff entered into an agreement to purchase and harvest timber upon property owned by defendants

75 A.D.3d 870

Bradley W. Torum and Samme Chittum-Torum

907 N.Y.S.2d 79

(hereinafter collectively referred to as defendants). Defendants thereafter conveyed the property, without reserving plaintiff's rights, to individuals who refused to permit the collection of the timber. This action against defendants and the purchasers of the property ensued.¹ A scheduling order was issued directing that party depositions be completed by September 30, 2008. The order specified that it was "subject to a conditional order of preclusion" and that a violation thereof entitled an aggrieved party to seek an order striking the offending party's claims or defenses. Although defendants' counsel was present, defendants did not appear for scheduled depositions and, having received no explanation for the failure to appear, plaintiff moved to strike defendants' answer ( see CPLR 3126[3] ). Following defendants' failure to oppose the motion in writing, Supreme Court granted the motion. Defendants now appeal.

Generally, a defaulting party is not aggrieved by, and may not appeal from, a default judgment; instead, that party must "move to vacate the default judgment in the court that issued the order and, if the motion is denied, ... appeal the order denying the motion" ( F.W. Myers & Co. v. Owsley & Sons, 192 A.D.2d 927, 597 N.Y.S.2d 178 [1993]; see CPLR 5511; Farhadi-Jou v. Key Bank of N.Y., 2 A.D.3d 1041, 1042, 768 N.Y.S.2d 418 [2003] ). An exception to this rule arises where the default judgment results from a contested motion to strike pursuant to CPLR 3126. If the motion is not contested, however, the defaulting party remains limited to seeking vacatur ( see CPLR 5015; Figiel v. Met Food, 48 A.D.3d 330, 851 N.Y.S.2d 524 [...