Appeal by tenant from an order of the Civil Court, Kings County

(M. Sikowitz, J.), entered on July 17, 2003, which granted landlord's motion to enter a final judgment awarding it possession and the sum of $965 for legal fees.

Appeal unanimously dismissed.

Inasmuch as tenant did not file opposition papers to landlord's attorney's motion to enter a final judgment in its favor, her actions were the same as a defaulting party (see Vanderveer Apts. v Moore, 2 Misc 3d 132 [A], 2004 NY Slip Op 50123 [U] [App Term, 2d & 11th Jud Dists]; 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 Wagenen, 54 NY 25 [1873]; Landmark Aviation v De Marmels, 63 AD2d 964 [1978]; 10 Carmody-Wait 2d § 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 [2000]). 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 [1991]; cf. Chrysler Credit Corp. v Smith, 157 Misc 2d 56 [1993]). Accordingly, tenant's appeal from the July 17, 2003 order is dismissed.

We note that this disposition is without prejudice to an application below, should tenant be so advised, to vacate the judgment, the denial of which is appealable.
Decision Date: November 30, 2004