Opinion
October 28, 1985
Appeal from the Supreme Court, Queens County (Becker, J., Kassoff, J., Leviss, J., Becker, J.)
Judgment dated October 31, 1983 and order dated March 5, 1984, affirmed, with one bill of costs.
The order of Justice Leviss dated June 1, 1982, which denied defendant's motion to vacate its default, is not reviewable, as an appeal was taken therefrom and was dismissed on this court's own motion for failure to perfect the same. Where a party appeals from an intermediate order, thereafter abandons the appeal by failing to perfect, and the appeal is then dismissed by an appellate court, the party is estopped for reasons of judicial economy from seeking review of issues which could have been raised on the appeal from the intermediate order (Bray v Cox, 38 N.Y.2d 350; Matter of Smith v McManus Sons, 101 A.D.2d 890). Special Term's order dated July 5, 1983, which treated the defendant's motion to dismiss the complaint for failure to enter a judgment within one year as one to reargue or renew its prior motion to vacate its default, and thereupon denied the same, was entirely proper. The record clearly established that the plaintiff complied with CPLR 3215 (c) and instituted proceedings for the entry of the default judgment prior to the expiration of one year from its default. Special Term's order and interlocutory judgment, dated March 18, 1982, which adjudged the defendant liable and directed that an inquest be held, is uncontrovertable proof that plaintiff acted within one year of defendant's default in appearing and answering.
Although Trial Term improperly concluded that the doctrine of the law of the case prevented it from evaluating the defendant's posttrial motion to vacate the notice of inquest pursuant to CPLR 2005, 3012 (d) on the merits, we nonetheless conclude that the motion was properly denied, as the defendant completely failed to proffer a valid and reasonable excuse for its default. Although CPLR 2005, 3012 (d) empower the courts to exercise discretion in determining motions to vacate defaults emanating from law office failure (Stolpiec v Wiener, 100 A.D.2d 931), the legislation did not intend the routine vacatur of such defaults (La Buda v Brookhaven Mem. Hosp. Med. Center, 98 A.D.2d 711, affd 62 N.Y.2d 1014). Law office failure may be considered along with several other relevant factors in determining motions to open defaults. However, where, as here, no justifiable excuse is presented and the default remains unexplained, the moving party is not entitled to a vacatur of its default, regardless of the meritorious nature of its defense. Furthermore, we find that the record, regarding the plaintiff's injuries, amply supports the jury's award of damages. We have examined defendant's remaining contentions and find them to be without merit. Bracken, J.P., Weinstein, Kunzeman and Kooper, JJ., concur.