Opinion
13971 Index No. 100383/21 Case No. 2021-01583
05-12-2021
In the Matter of Walter IWACHIW, Petitioner-Appellant, v. BOARD OF ELECTIONS IN the CITY OF NEW YORK, Respondent-Respondent.
Walter Iwachiw, appellant pro se. James E. Johnson, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for respondent.
Walter Iwachiw, appellant pro se.
James E. Johnson, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for respondent.
Acosta, P.J., Renwick, Mazzarelli, Mendez, Shulman, JJ.
Appeal from order, Supreme Court, New York County ( Carol R. Edmead, J.), entered April 23, 2021, which, upon petitioner's default, dismissed his petition against the New York City Board of Elections, with prejudice, unanimously dismissed, without costs, as taken from a nonappealable order.
Since the underlying order was decided upon petitioner's default it was not appealable ( CPLR 5511 ), and the proper procedure was for petitioner to move to vacate his default pursuant to CPLR 5015 (see Kamen v. Weithorn , 83 A.D.3d 560, 561, 920 N.Y.S.2d 668 [1st Dept. 2011] ; Jackson v. Jackson , 7 A.D.3d 404, 404-405, 776 N.Y.S.2d 477 [1st Dept. 2004] ).