Hodson v. Vinnie's Farm Mkt.
| Decision Date | 21 February 2013 |
| Citation | 2013 N.Y. Slip Op. 01182,103 A.D.3d 549,959 N.Y.S.2d 440 |
| Parties | A Hope HODSON, Plaintiff–Respondent, v. VINNIE'S FARM MARKET, et al., Defendants–Appellants. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Edward J. Carroll, Kingston, for appellants.
Alan D. Gordon, New York, for respondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered May 13, 2011, which, in this personal injury action, denied defendants' motion to, inter alia, vacate an order, same court and Justice, entered April 30, 2009, on defendants' default, granting plaintiff's motion to strike defendants' answers, and a judgment, same court and Justice, entered July 31, 2009, in plaintiff's favor in the total amount of $201,498.61, following defendants' default at the inquest, and to dismiss the complaint as abandoned pursuant to CPLR 3215(c), unanimously affirmed, without costs. Appeal from aforesaid order, entered April 30, 2009, unanimously dismissed, without costs, as taken from a nonappealable paper.
No appeal lies from an order entered on default ( see Baez–Ferreira v. Marte, 86 A.D.3d 434, 434–435, 926 N.Y.S.2d 291 [1st Dept. 2011] ). Defendants' remedy was an application to vacate the order pursuant to CPLR 5015 ( id.).
The court properly declined to dismiss plaintiff's complaint as “abandoned” under CPLR 3215(c). That subdivision does not apply where, as here, the defendants served answers, albeit unverified ones ( see Myers v. Slutsky, 139 A.D.2d 709, 710, 527 N.Y.S.2d 464 [2d Dept. 1988] ).
Defendants failed to proffer a reasonable excuse in support of their motion to vacate their defaults ( see CPLR 5015[a][1]; LePatner & Assoc., LLP v. Horowitz, 81 A.D.3d 472, 916 N.Y.S.2d 105 [1st Dept. 2011] ). The record belies defendants' claims that they believed the action was discontinued and that they were not served with various documents in this action, including notice of plaintiff's motion to strike their answers. Indeed, the record shows that defendants were served with and received notice of plaintiff's motion, and that they also failed to respond to approximately 39 letters, notices, demands, and correspondence regarding the action. In any event, defendants waived any objection to personal jurisdiction by not raising it in a pre-answer motion or in their answers (CPLR 321l[e] ).
In view of defendants' lack of a reasonable excuse for their defaults, it is unnecessary to consider whether they have demonstrated a meritorious defense ( see Aaron v. Greenberg & Reicher, LLP, 68 A.D.3d 533, 534, 889 N.Y.S.2d 455 [1st Dept. 2009] ).
Defendants failed to preserve their challenge to the...
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