Opinion
October 17, 1988
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the appeal is dismissed, with costs.
No appeal lies from an order made upon the default of the aggrieved party (CPLR 5511). The proper procedure would have been for the plaintiff to move to open her default and to vacate the order entered June 24, 1987, and if necessary, appeal from the denial of the motion to vacate (see, Grober v Busigo, 133 A.D.2d 389; Imor v Imor, 114 A.D.2d 552; Calvagno v Nationwide Mut. Fire Ins. Co., 110 A.D.2d 741).
On appeal, the plaintiff seeks review of an order which granted her motion "for leave to reargue" the motion to preclude, and thereupon adhered to the original determination. No notice of appeal from that order has been included in the record. Since no appeal lies from the order entered June 24, 1987, the plaintiff may not have review of the subsequent order pursuant to CPLR 5517 (b). However, even if we were to have considered the merits of the order made on reargument, we would have affirmed because no affidavit of merit or its equivalent was submitted with the plaintiff's motion papers (see, Hauser v Nassau Country Club, 130 A.D.2d 545; see also, Onorio v Miller, 143 A.D.2d 80; Oversby v Linde Div., 121 A.D.2d 373; cf., Salch v Paratore, 60 N.Y.2d 851, rearg denied 61 N.Y.2d 759). Lawrence, J.P., Kunzeman, Sullivan and Balletta, JJ., concur.