HELM v. XYZ (2021)

Appeal from order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about January 9, 2020, which denied plaintiffs' motion for a preliminary injunction to enjoin defendant PHH Mortgage Corporation (PHH) from selling or transferring plaintiffs' cooperative shares, and granted PHH's cross motion to dismiss the complaint, unanimously dismissed, without costs.

PHH's cross motion to dismiss was unopposed, as plaintiffs admittedly failed to submit opposition, and the court denied their oral application to submit late papers.  No appeal lies from an order entered on the default of an aggrieved party, and having defaulted on PHH's cross motion, their remedy is not an appeal but a motion to vacate (see Shannon v. City of New York, 275 A.D.2d 671, 713 N.Y.S.2d 858 [1st Dept. 2000];  CPLR 5511).

In any event, plaintiffs would be collaterally estopped from raising the identical issues raised when their previous action was dismissed upon their default, as they deliberately refused to litigate, and abandoned their claim that PHH failed to provide proper notice of the impending foreclosure and sale (see Matter of Abady, 22 A.D.3d 71, 83–85, 800 N.Y.S.2d 651 [1st Dept. 2005]).