| MY-Trade Cabinet Co., Inc. v Blancher |
| 2017 NY Slip Op 50486(U) [55 Misc 3d 135(A)] |
| Decided on April 12, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Smith, Carroad, Levy & Wan, P.C. (Timothy Wan, Esq.), for appellant. Sokoloff Stern, LLP (Adam I. Kleinberg, Esq.), for respondent (no brief filed).
Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated April 20, 2015. The order granted defendant's motion to vacate a default judgment of the same court entered August 5, 2014, to the extent of setting the matter down for a traverse hearing.
ORDERED that the appeal is dismissed.
Plaintiff commenced this breach of contract action to recover the principal sum of $9,336 in compensation for having supplied various business materials and performing home improvement services for defendant. An affidavit of service indicates that defendant was served with process pursuant to CPLR 308 (2). Defendant failed to appear or answer, and a default judgment was entered in favor of plaintiff in the principal sum of $9,336 on August 5, 2014. Defendant thereafter moved to vacate the judgment, claiming that she had not been aware of the action and that she had not been served with the pleadings. By order dated April 20, 2015, the District Court granted defendant's motion to vacate the default judgment to the extent of ordering a traverse hearing. Plaintiff appeals.
No appeal as of right lies from an order setting a matter down for a traverse hearing to determine whether service was proper (see UDCA 1702 [a] [2]; Wheeler v McCreight, 34 Misc 3d 144[A], 2012 NY Slip Op 50143[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Citibank, N.A. v S & J, Inzlicht, Inc., 8 Misc 3d 134[A], 2005 NY Slip Op 51174[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; see also Frost Halvorsen, 100 AD2d 608 [1984]), and leave to appeal has not been granted.
Accordingly, the appeal is dismissed.
Iannacci, J.P., Tolbert and Brands, JJ., concur.