MONTANARO v. WEICHERT (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum:  Defendants appeal from a judgment awarding money damages to plaintiff following an inquest, which occurred after Supreme Court determined that defendants were in default for failing to answer the amended complaint.  Although defendant Robert M. Weichert is a former attorney (see Matter of Weichert, 40 A.D.2d 261, 266, 339 N.Y.S.2d 750 [4th Dept. 1973], lv denied 33 N.Y.2d 514, 348 N.Y.S.2d 1025, 301 N.E.2d 869 [1973] ), both defendants appear pro se in this appeal.  In prior appeals, this Court affirmed an order granting plaintiff leave to serve the amended complaint (Montanaro v. Weichert [Appeal No. 1], 145 A.D.3d 1563, 43 N.Y.S.3d 843 [4th Dept. 2016] ) and dismissed defendants' appeal from a decision in which Supreme Court granted plaintiff's motion for a default judgment (Montanaro v. Weichert [Appeal No. 2], 145 A.D.3d 1564, 42 N.Y.S.3d 913 [4th Dept. 2016] ).

On this appeal, defendants contend that the court should have dismissed the amended complaint on several grounds, including the expiration of the statute of limitations, plaintiff's purported failure to comply with Executive Law §§ 296, 297 and 300, and plaintiff's purported lack of credibility at an administrative hearing that occurred before plaintiff commenced this action.  We note that those contentions concern the basis for a finding of liability, but liability here is based on defendants' default in answering the amended complaint (see Curiale v. Ardra Ins. Co., 88 N.Y.2d 268, 279, 644 N.Y.S.2d 663, 667 N.E.2d 313 [1996] ).  It is well settled that “no appeal lies from an order [or judgment] entered on default” (Calaci v. Allied Interstate, Inc. [Appeal No. 2], 108 A.D.3d 1127, 1128, 969 N.Y.S.2d 348 [4th Dept. 2013];  see CPLR 5511), and thus the appeal must be dismissed.

Defendants' remedy was to move to vacate the default judgment, then appeal from an order denying their motion to vacate the default judgment (see generally Britt v. Buffalo Mun. Hous. Auth., 109 A.D.3d 1195, 1196, 972 N.Y.S.2d 381 [4th Dept. 2013] ).  It appears that at least one of the defendants moved to vacate the default judgment and the court denied that motion and, although an appeal from a judgment brings up for review “any non-final judgment or order which necessarily affects the final judgment” (CPLR 5501[a][1] ), no such non-final order is included in the record on appeal.  Defendants, “as the appellant[s], submitted this appeal on an incomplete record and must suffer the consequences” (Matter of Santoshia L., 202 A.D.2d 1027, 1028, 609 N.Y.S.2d 724 [4th Dept. 1994];  see Elwell v. Shumaker, 158 A.D.3d 1133, 1134–1135, 70 N.Y.S.3d 322 [4th Dept. 2018];  Resetarits Constr. Corp. v. City of Niagara Falls, 133 A.D.3d 1229, 1229, 18 N.Y.S.3d 914 [4th Dept. 2015] ).

Finally, although defendants moved to settle the record and the court declined to include that order in the record on appeal, “[t]he remedy for an adverse determination of such a motion is an appeal from the order embodying the determination” of the motion to settle the record (Meyer v. Doyle Chevrolet, 234 A.D.2d 1016, 1016, 651 N.Y.S.2d 769 [4th Dept. 1996];  see e.g. Chaudhuri v. Kilmer, 158 A.D.3d 1276, 1276, 68 N.Y.S.3d 355 [4th Dept. 2018];  Mosey v. County of Erie [Appeal No. 3], 148 A.D.3d 1576, 1576, 48 N.Y.S.3d 908 [4th Dept. 2017] ).  Here, even assuming, arguendo, that an appeal from the judgment brings up for review the order settling the record (see generally CPLR 5501[a][1] ), we note that defendants do not address that order in their brief on appeal.  Defendants' brief reference to that order in their reply brief does not require a different result because “it is well settled that contentions that are raised for the first time in a reply brief are not properly before us” (Murnane Bldg. Contrs., LLC v. Cameron Hill Constr., LLC, 159 A.D.3d 1602, 1605, 73 N.Y.S.3d 848 [4th Dept. 2018];  see Becker–Manning, Inc. v. Common Council of City of Utica, 114 A.D.3d 1143, 1144, 980 N.Y.S.2d 651 [4th Dept. 2014];  Turner v. Canale, 15 A.D.3d 960, 961, 790 N.Y.S.2d 347 [4th Dept. 2005], lv denied 5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189 [2005] ).