BROTHERS INC v. BRADLEY TORUM

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

M & C BROTHERS, INC., Respondent, v. BRADLEY W. TORUM et al., Appellants, et al., Defendants.

507099

Decided: July 15, 2010

Before:  Cardona, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ. Neroni Law Office, Delhi (Tatiana Neroni of counsel), for appellants. Jonathan S. Follender, P.C., Arkville (Jonathan S. Follender of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  May 24, 2010

Appeal from an order and judgment of the Supreme Court (Peckham, J.), entered January 30, 2009 in Delaware County, which granted plaintiff's motion to strike defendants' answer.

In October 2004, plaintiff entered into an agreement to purchase and harvest timber upon property owned by defendants Bradley W. Torum and Samme Chittum-Torum (hereinafter collectively referred to as defendants).   Defendants thereafter conveyed the property, without reserving plaintiff's rights, to individuals who refused to permit the collection of the timber.   This action against defendants and the purchasers of the property ensued.1  A scheduling order was issued directing that party depositions be completed by September 30, 2008.   The order specified that it was “subject to a conditional order of preclusion” and that a violation thereof entitled an aggrieved party to seek an order striking the offending party's claims or defenses.   Although defendants' counsel was present, defendants did not appear for scheduled depositions and, having received no explanation for the failure to appear, plaintiff moved to strike defendants' answer (see CPLR 3126[3] ).   Following defendants' failure to oppose the motion in writing, Supreme Court granted the motion.   Defendants now appeal.

Generally, a defaulting party is not aggrieved by, and may not appeal from, a default judgment;  instead, that party must “move to vacate the default judgment in the court that issued the order and, if the motion is denied, ․ appeal the order denying the motion” (F.W. Myers & Co. v. Owsley & Sons, 192 A.D.2d 927 [1993];  see CPLR 5511;  Farhadi-Jou v. Key Bank of N.Y., 2 AD3d 1041, 1042 [2003] ).   An exception to this rule arises where the default judgment results from a contested motion to strike pursuant to CPLR 3126.   If the motion is not contested, however, the defaulting party remains limited to seeking vacatur (see CPLR 5015;  Figiel v. Met Food, 48 AD3d 330 [2008];  Parker v State Farm Mut. Auto. Ins. Co., 26 AD3d 719, 720 [2006] ).   Defendants here failed to submit written opposition to plaintiff's motion, but did appear for oral argument.   Oral opposition to a motion, while not prohibited per se, does not constitute competent evidence and, in this case, is of particularly minimal value given that oral argument was not held on the record (see Matter of County of Sullivan [Basile], 43 AD3d 598, 599 [2007];  Kaiser v. J & S Realty, 173 A.D.2d 920, 921 [1991] ).   Accordingly, defendants' failure to formally oppose plaintiff's motion was appropriately treated as a default, and their only recourse was to move to vacate the judgment (see Fox v. T.B.S.D., Inc., 278 A.D.2d 612, 613 [2000], lv denied 96 N.Y.2d 716 [2001];  see also Armin A. Meizlik Co. Inc. v L & K Jewelry Inc., 68 AD3d 530, 531 [2009];  Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 11 Misc.3d 135[A], 2006 N.Y. Slip Op 50479[U] [2006];  cf.   Matter of County of Sullivan [Basile], 43 AD3d at 599).2

Cardona, P.J., Malone Jr., Kavanagh and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Michael J. Novack

Clerk of the Court

FOOTNOTES

FN1. Plaintiff's claim against the purchasers was discontinued shortly before the order at issue here was rendered..  FN1. Plaintiff's claim against the purchasers was discontinued shortly before the order at issue here was rendered.

FN2. We note that defendants have both unsuccessfully moved for vacatur before Supreme Court and discontinued their appeal from the denial of their motion to vacate (2010 N.Y. Slip Op 63744[U] )..  FN2. We note that defendants have both unsuccessfully moved for vacatur before Supreme Court and discontinued their appeal from the denial of their motion to vacate (2010 N.Y. Slip Op 63744[U] ).

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