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Lumbermen's Mut. Cas. Co. v. Fireman's Fund

Appellate Division of the Supreme Court of New York, Second Department
Feb 3, 1986
117 A.D.2d 588 (N.Y. App. Div. 1986)

Opinion

February 3, 1986

Appeal from the Supreme Court, Westchester County (Kelly, J.).


Appeal dismissed, without costs or disbursements.

Judgment in favor of plaintiff was entered after the court had granted an unopposed motion by plaintiff to renew a prior motion for summary judgment. Although plaintiff characterized the motion as one to reargue, the papers submitted in support of that motion contained factual matters not included in the prior motion. The motion was therefore one to renew. Whether deemed a motion to renew or a motion to reargue, however, the ultimate relief sought was summary judgment in favor of plaintiff. Defendant defaulted in opposing this motion. No appeal lies from an order or judgment granted upon the default of the aggrieved party (CPLR 5511; Flake v. Van Wagenen, 54 N.Y. 25; Manhattan 30 Corp. v. Nassau County, 100 A.D.2d 576). This rule applies as well to judgments entered pursuant to orders granted upon default (Lapof v Postulnick, 232 App. Div. 832; Wolfensteller v. Frank, 50 A.D.2d 846). Defendant's remedy is to seek to open its default and vacate the judgment appealed from (Calvagno v. Nationwide Mut. Fire Ins. Co., 110 A.D.2d 741; Montalvo v. Key Indus., 98 A.D.2d 767). Mollen, P.J., Thompson, Rubin and Kunzeman, JJ., concur.


Summaries of

Lumbermen's Mut. Cas. Co. v. Fireman's Fund

Appellate Division of the Supreme Court of New York, Second Department
Feb 3, 1986
117 A.D.2d 588 (N.Y. App. Div. 1986)
Case details for

Lumbermen's Mut. Cas. Co. v. Fireman's Fund

Case Details

Full title:LUMBERMEN'S MUTUAL CASUALTY COMPANY, Respondent, v. FIREMAN'S FUND…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 3, 1986

Citations

117 A.D.2d 588 (N.Y. App. Div. 1986)

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