Opinion
224
April 10, 2003.
Appeal from order, Supreme Court, Bronx County (Bertram Katz, J.), entered October 24, 2001, which granted judgment in favor of defendant pursuant to 22 NYCRR 202.27 upon plaintiff's failure to appear at a court conference, in this action for partition and sale of an allegedly commonly owned property, unanimously dismissed, without costs, as taken from a nonappealable order, without prejudice to plaintiff moving before Supreme Court to vacate the default.
Patrick J. Leddy, for plaintiff-appellant.
Evan D. Rogers, for defendant-respondent.
Before: Tom, J.P., Mazzarelli, Ellerin, Williams, Marlow, JJ.
No appeal lies from an order entered on default (CPLR 5511). Although plaintiff twice sought to vacate her default, the motion court refused to sign her orders to show cause seeking such relief, and she never sought to have such refusals reviewed by this Court pursuant to CPLR 5704(a). Nor are such refusals appealable as of right such as might make them reviewable under CPLR 5517(b). However, in our view, the record evidence in this matter, e.g., the deed of ownership, defendant's admissions that he and plaintiff owned the premises as tenants in common, plaintiff's counsel's law office failure, and defendant's refusal to allow access for plaintiff's court-ordered appraisal, suggests that plaintiff should be accorded a further opportunity to seek adjudication on the merits as indicated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.