| M & C Bros., Inc. v Torum |
| 2010 NY Slip Op 06124 [75 AD3d 869] |
| July 15, 2010 |
| Appellate Division, Third Department |
| M & C Brothers, Inc., Respondent, v Bradley W. Torum et al.,Appellants, et al., Defendants. |
—[*1] Jonathan S. Follender, P.C., Arkville (Jonathan S. Follender of counsel), forrespondent.
Mercure, J. Appeal from an order and judgment of the Supreme Court (Peckham, J.), enteredJanuary 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 uponproperty owned by defendants Bradley W. Torum and Samme Chittum-Torum (hereinaftercollectively referred to as defendants). Defendants thereafter conveyed the property, withoutreserving plaintiff's rights, to individuals who refused to permit the collection of the timber. Thisaction against defendants and the purchasers of the property ensued.[FN1]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 aviolation thereof entitled an aggrieved party to seek an order striking the offending party's claimsor defenses. Although defendants' counsel was present, defendants did not appear for scheduleddepositions and, having received no explanation for the failure to appear, plaintiff moved tostrike defendants' answer (see CPLR 3126 [3]). Following defendants' failure to opposethe 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 defaultjudgment; instead, that party must "move to vacate the default judgment in the court that issuedthe order and, if the motion is denied, . . . appeal the order denying the motion"(F.W. Myers & Co. v Owsley & Sons, 192 AD2d 927 [1993]; see CPLR 5511;Farhadi-Jou v Key Bank of N.Y., 2AD3d 1041, 1042 [2003]). An exception to this rule arises where the default judgmentresults 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 writtenopposition 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 ofparticularly 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 AD2d 920, 921[1991]). Accordingly, defendants' failure to formally oppose plaintiff's motion was appropriatelytreated as a default, and their only recourse was to move to vacate the judgment (see Fox vT.B.S.D., Inc, 278 AD2d 612, 613 [2000], lv denied 96 NY2d 716 [2001]; see also Armin A. Meizlik Co. Inc. v L&KJewelry Inc., 68 AD3d 530, 531 [2009]; Careplus Med. Supply Inc. v TravelersHome & Mar. Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50479[U] [2006]; cf.Matter of County of Sullivan [Basile], 43 AD3d at 599).[FN2]
Cardona, P.J., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the appeal isdismissed, without costs.
Footnote 1: Plaintiff's claim against thepurchasers was discontinued shortly before the order at issue here was rendered.
Footnote 2: We note that defendants haveboth unsuccessfully moved for vacatur before Supreme Court and discontinued their appeal fromthe denial of their motion to vacate (2010 NY Slip Op 63744[U] [2010]).