Opinion
October 25, 1999
Herbert L. Haas, Huntington, for appellant.
PRESENT: DiPAOLA, P.J., FLOYD and PALELLA, JJ.
DECIDED
Memorandum. Judgment unanimously reversed without costs and matter remanded to the court below for further proceedings.
Appeal from the "decision" unanimously dismissed.
There is no provision in the Uniform Civil Rules for the Justice Courts (22 N.Y.CRR Part 24) requiring an appearance by a party on the return date of a motion, nor is there a provision analogous to the New York City Civil Court Rules providing that a party may be directed to appear at oral argument (see, 22 NYCRR 208.11) . Accordingly, defendant's failure to appear on the return date of his motion to dismiss the summons and indorsed complaint did not constitute a default, and no "default judgment" could be granted thereupon in favor of plaintiff.
Defendants appeal from so much of the "judgment" as purportedly denied his motion to dismiss the summons and indorsed complaint, is in effect an appeal from an oral decision rendered by the court which does not constitute a proper appealable order (see, CPLR 2219; Matter of Dondi, 63 N.Y.2d 331). In any event, even had an order been entered, it would have been subsumed in the judgment.