Opinion
15623 Index No. 650858/19 Case No. 2021–00719
03-31-2022
HILTON WIENER, LLC, Plaintiff–Respondent, v. Lowell ANDERSON, Defendant–Appellant.
Steven G. Legum, Mineola, for appellant. Paul T. Vink, P.C., White Plains (Paul T. Vink of counsel), for respondent.
Steven G. Legum, Mineola, for appellant.
Paul T. Vink, P.C., White Plains (Paul T. Vink of counsel), for respondent.
Gische, J.P., Oing, Scarpulla, Shulman, Higgitt, JJ.
Appeal from judgment, Supreme Court, New York County (Nancy M. Bannon, J.), entered February 25, 2021, granting plaintiff Hilton Wiener, LLC legal fees in the amount of $35,355, plus interest, costs, and disbursements, for a total sum of $45,993.21, unanimously dismissed, without costs.
No appeal lies from an order entered upon the default of the appealing party (see Matter of Derick B. v. Catherine L., 155 A.D.3d 511, 512, 65 N.Y.S.3d 40 [1st Dept. 2017] ). Although defendant argues that the default was improperly entered against him before the scheduled return date of the motion, once Supreme Court granted the motion, defendant should have moved to vacate the default. Given the procedural posture, defendant was required to make a showing of a potentially meritorious defense and a reasonable excuse for the delay, at which time he could have included his argument that the court had prematurely entered a default against him (see Matter of Jabuki M. v. Nicole B., 196 A.D.3d 405, 146 N.Y.S.3d 773 [1st Dept. 2021] ; Deutsch v. Deutsch, 194 A.D.3d 542, 143 N.Y.S.3d 873 [1st Dept. 2021] ). Defendant failed to do so. The fact that defendant submitted opposition after the deadline does not change this result (see Vassiliou–Sideris v. Nautilus, Inc., 186 A.D.3d 1756, 1757, 129 N.Y.S.3d 796 [2d Dept. 2020] ).