| Lucio Spista & Maria L. Spista v Angela Livingston |
| Motion No: 2015-02058 WC |
| Slip Opinion No: 2015 NY Slip Op 90563(U) |
| Decided on November 9, 2015 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
of the State of New York for the 9th & 10th judicial Districts
ANTHONY MARANO, P.J.
JERRY GARGUILO
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ON MOTION
| Lucio Spista and Maria L. Spista, Respondents, v Angela Livingston, Appellant, et al., Undertenants. |
Motion by appellant for a stay pending the determination of an appeal from a default final judgment of the City Court of White Plains, Westchester County, entered August 25, 2015, and to vacate the default final judgment.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED, on the court's own motion, that the appeal is dismissed, as no appeal lies from a final judgment entered upon the default of the appealing party (see CPLR 5511; Matter of Davy v Davy, 75 AD3d 506 [2010]). The proper procedure is for appellant to move in the City Court to vacate the default final judgment and, if necessary, appeal from the order determining the motion to vacate (id.); and it is further,
ORDERED that the branch of appellant's motion seeking a stay pending the determination of the appeal is denied as academic; and it is further,
ORDERED that the branch of appellant's motion seeking to vacate the default final judgment is denied without prejudice to appellant moving for that relief in the City Court.
ENTER:
Paul Kenny
Chief Clerk