Champion v. Wilsey
| Decision Date | 04 May 1989 |
| Parties | James CHAMPION, Respondent, v. Dan WILSEY, Individually and Doing Business as Dan Wilsey Racing Stable, Defendant, and Peter J. Skocigoric, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Felcher & Felcher (Howard Felcher, of counsel), New York City, for appellant.
McMahon & McMahon, P.C. (Peter L. Coseo, of counsel), Saratoga Springs, for respondent.
Before CASEY, J.P., and MIKOLL, LEVINE and MERCURE, JJ.
Appeal from an order of the Supreme Court (Brown, J.), entered April 27, 1988 in Saratoga County, which denied defendant Peter J. Skocigoric's motion to vacate a default judgment entered against him.
Plaintiff brought this conversion and fraud action alleging that as a result of an illegal auction defendants spirited away two harness race horses in which he had one-half interests, in violation of a "court ordered" stipulation. When defendants refused to appear at an examination before trial scheduled for March 31, 1986, plaintiff moved for an order pursuant to CPLR 3126 to compel disclosure. In granting the relief, Supreme Court ordered defendants to appear at an examination before trial within 45 days of service of the order or otherwise be held in default. The deposition was scheduled for June 24, 1986 but defendant Peter J. Skocigoric failed to appear, assertedly because his attorney withdrew the previous day. Supreme Court, by letter dated June 26, 1986, informed Skocigoric that its order was still binding and that he could avoid a default by arranging another date for his deposition within the time remaining under the order (approximately 14 days). Despite these clear instructions, Skocigoric did not retain a new attorney until January 20, 1987, who then informally notified plaintiff that Skocigoric was prepared to be deposed; at that point plaintiff's counsel was in the process of making a motion for a default judgment, which was brought on to be heard on February 13, 1987. Skocigoric opposed the motion, arguing that his default was excusable and that he had a meritorious defense. When Supreme Court granted the motion, finding the default inexcusable, Skocigoric moved for a stay pending appeal, which was denied; he did not pursue the appeal. Following a motion for reargument, Supreme Court found that in addition to not having an excuse for his default, Skocigoric lacked a meritorious defense. Skocigoric then moved, again unsuccessfully, this time pursuant to CPLR 5015(a)(1) to vacate the default. This appeal ensued; we affirm.
Although characterized as a default judgment, relief granted under CPLR 3126(3) is directly appealable (see, Pergamon Press v. Tietze, 81 A.D.2d 831, 832, 438 N.Y.S.2d 831, lv dismissed 54 N.Y.2d 830; cf., CPLR 5511) because such an order or judgment is made on notice (CPLR 3215[f][1] ), thus enabling the defaulting party to contest...
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...established that this mode of proceeding is proper in cases where the default is predicated upon CPLR 3126 (see, Champion v. Wilsey, 150 A.D.2d 833, 834, 540 N.Y.S.2d 594; see also, Banner Serv. Corp. v. Hall, 185 A.D.2d 613, 587 N.Y.S.2d ...
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Pinapati v. Pagadala
...is appealable because it is made on notice to the defaulting party, thereby enabling that party to contest it (see, Champion v. Wilsey, 150 A.D.2d 833, 834, 540 N.Y.S.2d 594). Here, defendant fully opposed and contested plaintiff's January 1996 motion. Permitting a defaulting party to proce......
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Banner Service Corp. v. Hall
...(citation omitted). [Defendants'] remedy for the default judgment was an appeal, not a CPLR 5015(a)(1) motion" (Champion v. Wilsey, 150 A.D.2d 833, 834, 540 N.Y.S.2d 594; see also, Pergamon Press v. Tietze, supra, 81 A.D.2d at 832, 438 N.Y.S.2d 831). (Appeal from Order of Supreme Court, Mon......