Opinion
2003-104 K C.
Decided February 3, 2004.
Appeal by defendant from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered November 26, 2002, granting plaintiffs attorney's motion to vacate the order, entered September 6, 2002, which set the matter down for a contempt hearing as against him.
Appeal unanimously dismissed.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
Inasmuch as defendant did not file opposition papers to plaintiff's attorney's motion, her actions were the same as a defaulting party who acquiesced in the order and, therefore, is not aggrieved by it ( see Scott v. Mellen, NYLJ, Dec. 14, 2000 [App Term, 2d 11th Jud Dists]). It is well settled that no appeal lies from an order entered upon default ( see Flake v. Van Wacienen, 54 NY 25 [18731; Landmark Aviation v. De Marmels, 63 AD2d 964; 10 Carmody Wait 2d, NY Prac, § 70:32 at 267). It is of no consequence that oral arguments were made on the motion since said arguments would have been unsworn and are of no evidentiary value ( Fox v. T.B.S.D., Inc., 278 AD2d 612). The record on appeal contains no affidavits, sworn testimony or other competent evidence in opposition to the motion ( see e.g. Fox v. T.B.S.D., Inc., 278 AD2d 612, supra; Kaiser v. J S Realty, 173 AD2d 920; cf. Chrysler Credit Corp. v. Smith, 157 Misc 2d 56). Accordingly, defendant's appeal from the November 26, 2002 order is dismissed.
However, we note that were the appeal properly before us, we would have been inclined to affirm the lower court's order since defendant's application for contempt did not include the statutory language required under Judiciary Law § 756, to wit, "failure to appear in court may result in * * * immediate arrest and imprisonment for contempt of court." Said defect rendered the court without jurisdiction to hold plaintiff in contempt ( see Matter of P N Tiffany Props. v. Williams, 302 AD2d 466; Cappello v. Cappello, 274 AD2d 538).