Wiener v Iwachiw

2005 NY Slip Op 07953

Decided on October 24, 2005

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 24, 2005
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
SONDRA MILLER, J.P.
DAVID S. RITTER
REINALDO E. RIVERA
PETER B. SKELOS, JJ.
2004-01607






Walter Iwachiw, Sunnyside, N.Y., appellant pro se.
Irene Wiener, Huntington, N.Y., respondent pro se.

In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Suffolk County (Molia, J.), entered December 4, 2000, which, upon his default in appearing at trial, inter alia, dissolved the parties' marriage and distributed the marital estate.

ORDERED that the appeal is dismissed, without costs or disbursements, as no appeal lies from a judgment entered upon the default of an appealing party (see CPLR 5511; Matter of Porscha Monique J., 21 AD3d 415).

The defendant failed to appear for continued trial proceedings on October 8, 1999. After the plaintiff rested, she requested that the Supreme Court "make a trial decision on this matter." The Supreme Court issued a written decision dated November 19, 1999. The judgment of divorce recites, inter alia, that it was rendered on the defendant's failure to appear at trial. In his brief, the defendant argues, among other things, that he did appear but found the courtroom doors locked. Whatever excuses the defendant may proffer for his default must be raised by motion to vacate that default (see CPLR 5015).

We do not reach the defendant's remaining contentions in light of our determination.
S. MILLER, J.P., RITTER, RIVERA and SKELOS, JJ., concur.

2004-01607 DECISION & ORDER ON MOTION
Irene Wiener, respondent, v
Walter Iwachiw, appellant.
(Index No. 8277/98)

Motion by the respondent on an appeal from a judgment of the Supreme Court, Suffolk County, entered December 4, 2000, to dismiss the appeal on the ground, inter alia, that the appellant raises issues that are not properly before this court. By decision and order on motion dated March 15, 2005, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, no papers having been filed in opposition or relation thereto, and upon the submission of the appeal, it is

ORDERED that the motion is denied as academic in light of our determination on the appeal (see Weiner v Iwachiw, AD3d [decided herewith]).
S. MILLER, J.P., RITTER, RIVERA and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court