SMITH v. J.D.W. Construction Corp., Third-Party Defendant-Appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Patrick SMITH, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants, MRLS Construction, Inc., Defendant Third-Party Plaintiff-Respondent, J.D.W. Construction Corp., Third-Party Defendant-Appellant.

Decided: April 28, 1997

Before MILLER, J.P., and THOMPSON, JOY and LUCIANO, JJ. James P. O'Connor (Newman Fitch Lane Altheim Myers, P.C., New York City [John C. Lane and Susan A. Karp], of counsel), for third-party defendant-appellant J.D.W. Construction Corp. Robin Rome Goldfarb & Lloyd (Ann K. Kandel, Hauppauge [Kathleen D. Foley], of counsel), for third-party plaintiff-respondent.

In a negligence action to recover damages for personal injuries, etc., the third-party defendant appeals from a judgment of the Supreme Court, Kings County (Jackson, J.), entered October 25, 1995, upon the third-party defendant's default in complying with a prior order of the same court dated March 9, 1995, granting the third-party plaintiff's cross motion for summary judgment unless the third-party defendant responded to certain discovery, which is in favor of the defendant third-party plaintiff and against it.

ORDERED that the appeal is dismissed, without costs or disbursements.

The Supreme Court entered a judgment in favor of the third-party plaintiff and against the appellant after the appellant failed to comply with a prior order granting the third-party plaintiff's motion for summary judgment on its third-party complaint unless the appellant provided certain discovery.   Since the judgment is deemed to have been entered on the appellant's default, the appellant's proper remedy was to move to vacate the judgment rather than a direct appeal (see, CPLR 5511;  Murphy v. Murphy, 212 A.D.2d 583, 622 N.Y.S.2d 755;  see, e.g., Fleet Finance v. Nielsen, 234 A.D.2d 728, 650 N.Y.S.2d 904;  Rust v. Sifer, 115 Misc.2d 363, 453 N.Y.S.2d 975).


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