Federation of Puerto Rican Organizations of Brownsville, Inc. v. Mateo

• Decision Date: 23 January 1997
• Parties: FEDERATION OF PUERTO RICAN ORGANIZATIONS OF BROWNSVILLE, INC., et al., Plaintiffs-Respondents, v. Heriberto MATEO, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 954

652 N.Y.S.2d 954

235 A.D.2d 326

FEDERATION OF PUERTO RICAN ORGANIZATIONS OF BROWNSVILLE,

INC., et al., Plaintiffs-Respondents,

v. Heriberto MATEO, et al., Defendants-Appellants.

Supreme Court of New York, Appellate Division,

First Department.

Jan. 23, 1997.

Paul E. Bleifer, for Plaintiffs-Respondents.

Dominick A. Fusco, for Defendants-Appellants.

Appeal from order, Supreme Court, New York County (Ira Gammerman, J.), entered April 4, 1996, which denied defendants' motion to reargue, denominated a motion to vacate a default, unanimously dismissed as taken from a nonappealable order, without costs.

Although denominated a motion to vacate a default, defendants' motion was, in actuality, one to reargue the prior order that had conditionally struck their answer pursuant to CPLR 3126(3), rendering the instant order nonappealable (see, Berman v. Szpilzinger, 180 A.D.2d 612, 580 N.Y.S.2d 324). In any event, if we were to review, we would find that defendants provided neither a reasonable excuse for their failure to comply with the conditional order nor an affidavit of merit by one with personal knowledge of the facts (see, Becerril v. Skate Way Roller Rink, 184 A.D.2d 365, 366, 584 N.Y.S.2d 844).

WILLIAMS, J.P., and TOM, MAZZARELLI and ANDRIAS, JJ., concur.