Opinion
2002-06885
Submitted September 25, 2003.
October 27, 2003.
In a matrimonial action in which the parties were divorced by judgment dated December 4, 2001, the plaintiff and his attorney, the nonparty, Ernest H. Hammer, appeal from an order of the Supreme Court, Kings County (Marks, J.H.O.), dated May 1, 2002, which, after a hearing, granted that branch of the defendant's motion which was to vacate a judgment by confession entered in favor of the nonparty and against the plaintiff in the sum of $75,000, and vacated the judgment by confession.
Ernest H. Hammer, New York, N.Y., nonparty-appellant pro se and for plaintiff-appellant.
Regosin, Edwards, Stone Feder, New York, N.Y. (Saul E. Feder of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., HOWARD MILLER, THOMAS A. ADAMS, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the appeal by the plaintiff is dismissed as he is not aggrieved by the order appealed from ( see CPLR 5511); and it is further,
ORDERED that the order is affirmed; and it is further,
ORDERED that the defendant is awarded one bill of costs.
Clear and convincing evidence was presented at the hearing that a judgment by confession in favor of the nonparty-appellant and against the plaintiff was made and entered with actual intent to hinder and defraud the defendant, a creditor of the plaintiff ( see Debtor Creditor Law §§ 270, 276; Prudential Farms of Nassau County v. Morris, 286 A.D.2d 323, 324; Pen Pak Corp. v. LaSalle Natl. Bank of Chicago, 240 A.D.2d 384, 386; Apple Bank for Sav. v. Contaratos, 204 A.D.2d 375, 376). Consequently, the Supreme Court properly vacated the judgment by confession.
The nonparty-appellant's remaining contentions are either unpreserved for appellate review, without merit, or unnecessary to address in light of the foregoing determination.
ALTMAN, J.P., H. MILLER, ADAMS and TOWNES, JJ., concur.