Opinion
Motion No: CA 11-01738
01-25-2012
VIRGINIA S. PAUL, PLAINTIFF-APPELLANT, v. DAVID G. COOPER, AS ADMINISTRATOR OF THE ESTATE OF ERNEST R. COOPER, DECEASED, UNITED REFINING HOLDINGS, INC., DOING BUSINESS AS KWIK FILL GAS STATION, UNITED REFINING COMPANY OF PENNSYLVANIA, UNITED REFINING CO., AND UNITED REFINING, INC., DEFENDANTS-RESPONDENTS.
PRESENT: , P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
Plaintiff having moved for an extension of time to perfect the appeal, for an extension of time to serve properly the notice of appeal, and for other relief on the appeal taken herein from a judgment (denominated order) of the Supreme Court entered in the Office of the Clerk of the County of Monroe on May 20, 2011,
Now, upon reading and filing the affirmations of Michael J. Crosby, Esq., dated November 18, 2011, and December 1, 2011, the notice of motion with proof of service thereof, the affidavit of David F. Brown, Esq., sworn to November 28, 2011, and the affirmation of Phyllis A. Hafner, Esq., dated November 30, 2011, and due deliberation having been had thereon,
It is hereby ORDERED that the motion insofar as it seeks an extension of time to perfect the appeal is granted to the extent that the judgment entered upon plaintiff's default brings up for review, pursuant to CPLR 5501 (a) (1), any prior contested nonfinal order that necessarily affected the judgment, and plaintiff shall perfect any appeal from any such contested nonfinal order on or before March 26, 2012, and, in the event of failure to so perfect, any such appeal is hereby dismissed without further order, and
It is further ORDERED that the motion is granted insofar as it seeks an extension of time to serve properly a notice of appeal, on the condition that plaintiff properly serves the notice of appeal on or before February 24, 2012 (see CPLR 5520 [a]), and
It is further ORDERED that the motion is otherwise dismissed.
Memorandum: Plaintiff's failure to proceed to trial constituted a default and it is well settled that no appeal lies from an order or judgment entered upon such a default (see CPLR 5511; Eller v Eller, 116 AD2d 617, 618; First Natl. Bank & Trust Co. of Ellenville v Classic Collateral Corp., 44 AD2d 868, 868-869; Stehlik v City of New York, 22 AD2d 777, 777-778). "The proper remedy is to move in the court of original jurisdiction, on notice, to vacate the default and, if the motion is denied, to appeal from the order denying it" (Eller, 116 AD2d at 618). Plaintiff may, however, appeal from the default judgment for the sole purpose of securing review, pursuant to CPLR 5501 (a) (1), of any prior contested nonfinal order that necessarily affected the judgment (see James v Powell, 19 NY2d 249, 256 n 3, rearg denied 19 NY2d 862; cf. Matter of Brittany C. [Linda C.], 67 AD3d 788, 789).
Frances E. Cafarell, Clerk