Appellate Division: Second Judicial Department

M52719

E/sl

HOWARD MILLER, J.P.

DAVID S. RITTER

JOSEPH COVELLO

WILLIAM E. McCARTHY, JJ.

2006-02631, 2006-07488 Winston Madison Equities, Inc., respondent, v Abraham Schwartz, et al., appellants, et al., defendants. (Index No. 04-8502)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from a judgment of the Supreme Court, Orange County, dated May 17, 2006 (Appellate Division Docket No. 2006-07488), on the ground, inter alia, that no appeal lies from a judgment entered upon the default of the appealing party. Cross motion by the appellants, inter alia, to enlarge the time to perfect the appeal from the judgment dated May 17, 2006, to recall and vacate so much of a decision and order on motion of this court entitled "In the Matter of the Dismissal of Causes for Failure to Perfect - October 2006 Calendar," dated November 20, 2006, as dismissed an appeal from a judgment of the same court dated November 28, 2005 (Appellate Division Docket No. 2006-02631), to reinstate the appeal from the judgment dated November 28, 2005, and to consolidate the two appeals.

Upon the papers filed in support of the motion and the cross motion, and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is to dismiss the appeal from the judgment dated May 17, 2006 (Appellate Division Docket No. 2006-07488), on the ground that no appeal lies from a judgment entered upon the default of the appealing party is granted, and that appeal is dismissed, without costs or disbursements (see Marino v Termini, 4 AD3d 342); and it is further,

ORDERED that the motion is otherwise denied as academic; and it is further,

ORDERED that the cross motion is denied.

MILLER, J.P., RITTER, COVELLO and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court