SQUADRON ELLENOFF PLESENT SHEINFELD SORKIN LLP v. MAZZELLA (1999)

Appeals from judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered January 12, 1998, in plaintiff's favor as to defendants' liability and striking defendants' answer, affirmative defenses and counterclaims, and order, same court and Justice, entered December 24, 1997, granting plaintiff's application for relief pursuant to CPLR 3126, unanimously dismissed, without costs, as having been taken from a nonappealable order and judgment.

The order underlying the judgment appealed from was entered, pursuant to CPLR 3216, upon defendants' failure to appear for deposition in accordance with the provisions of the court's preliminary conference order, and does not recite that there was any opposition to its settlement and entry.   No appeal lies from an order or judgment entered upon the default of an aggrieved party (CPLR 5511).   Defendants' remedy was to move to vacate their default in the IAS court and, if their motion was denied, to appeal the order denying the motion (see, Batra v. State Farm Fire and Cas. Co., 205 A.D.2d 480, 614 N.Y.S.2d 133).

MEMORANDUM DECISION.