Opinion
July 14, 1992
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Denman, P.J., Boomer, Pine, Balio and Fallon, JJ.
Appeal unanimously dismissed without costs. Memorandum: In this action to recover the unpaid balance of an account for goods sold and delivered, plaintiff moved to compel discovery of certain documents in defendants' possession. By order entered October 4, 1989, the court granted the motion and, pursuant to CPLR 3126 (3), directed that, "in the event the defendants fail to deliver said documents within thirty (30) days as directed herein, the defendants' answer shall be stricken and judgment by default will be entered against the defendants". On January 8, 1990, after defendants failed to comply with the discovery order, plaintiff entered a judgment against defendants for the balance due on the account. On June 14, 1990, defendants moved to vacate the judgment and the court denied the motion. Defendants appeal from the order denying their motion to vacate the judgment.
The appeal must be dismissed. "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, 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 the motion; allowing a defaulting party to proceed by way of CPLR 5015 (a) (1) would grant him an extension of time in which to appeal, a result anathema to the legislative intent of CPLR 5513 [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; see also, Pergamon Press v. Tietze, supra, at 832).