Opinion
December 21, 1970
In a proceeding pursuant to article 78 of the CPLR to annul appellants' determination, made on October 14, 1969, which denied petitioner's application for an area variance in zoning, the appeal is from a judgment of the Supreme Court, Suffolk County, dated January 9, 1970, which annulled said determination and directed appellants to grant the requested variance. Appeal dismissed, without costs, and without prejudice to such motion as appellants might be advised to make at Special Term to vacate the judgment and for leave to answer the petition herein. The judgment was granted upon appellants' default in appearing and answering the petition. No appeal lies from a judgment entered on default in appearing or answering (cf. Deer Park Rest. v. O'Neill, 279 App. Div. 801; Consumers Ind. v. ABC Insulation Co., 285 App. Div. 1176; 10 Carmody-Wait 2d, New York Practice, § 70:25). Although the judgment is not appealable, we have considered the merits of Special Term's determination. The area variance sought by petitioner was one to permit him to erect a one-family dwelling on a substandard plot. The petition and notice of motion were served on November 21, 1969 and made returnable on December 23, 1969. Instead of answering, appellants moved to dismiss the petition on the ground that it had not properly been served. On January 9, 1970 an order was made denying that motion and the default judgment was made at the same time. Appellants did not appeal from the order. In our opinion, Special Term erred in granting the default judgment. Petitioner failed, prima facie, to establish by affidavits or other evidence that he was entitled to the relief sought in his petition (cf. Matter of Saitta v. Malone, 26 Misc.2d 817). A proceeding such as this, to annul an administrative body's determination, should not be concluded in the petitioner's favor merely upon the basis of a failure to answer the petition on the return date thereof, unless it appears that such failure to plead was intentional and that the administrative body has no intention to have the controversy determined on the merits ( Matter of Dun Roamin Corp. v. Larkin, 11 A.D.2d 737; cf. CPLR 7804, subds. [e], [f]). Munder, Acting P.J., Martuscello, Kleinfeld, Brennan and Benjamin, JJ., concur.