Appeal by defendant from an order of the Civil Court, Kings County (M. Archer, J.), entered October 9, 1998, which denied his motion to vacate the order entered August 7, 1998, which granted, on default, plaintiff's motion for summary judgment, deemed an appeal from the judgment of the same court (see CPLR 5520 [c]), entered November 25, 1998, in plaintiff's favor in the principal sum of $1,676.91.

Judgment unanimously affirmed without costs.

The right of direct appeal from the order entered October 9, 1998 terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). We deem the appeal from the order entered October 9, 1998 to be from the judgment (see CPLR 5520 [c]). Despite the provisions of CPLR 5511, an appeal lies from the default judgment, but review is limited to the issues presented by the order entered October 9, 1998 which was contested in the court below (see Central Savannah Riv. Area Resource Dev. Agency v White Eagle Intl., 110 AD2d 742; Hughes v Elliott, 1 Misc 3d 38 [App Term, 9th & 10th Jud Dists]).

This is the third action plaintiff has commenced in an attempt to recover a debt which defendant previously acknowledged was due pursuant to a motor vehicle retail instalment contract. In this action, after defendant's motion to vacate an order scheduling an inquest was granted, plaintiff moved for summary judgment and defendant failed to oppose the motion. Summary judgment was then granted in favor of plaintiff and a judgment was entered. Defendant's motion sought to vacate the default and restore the action to the trial calendar. Inasmuch as defendant offered no excuse for his failure to oppose plaintiffs motion for summary judgment and no evidence to support his claim that he does not owe the money, defendant's motion to vacate his default was properly denied (see CPLR 5015 [a]; Paulucci v Casa De Cuzzi, [*2]272 AD2d 594 [2000]). Accordingly, the judgment is affirmed.
Decision Date: February 26, 2004