| Figiel v Met Food |
| 2008 NY Slip Op 01615 [48 AD3d 330] |
| February 26, 2008 |
| Appellate Division, First Department |
| Zbigniew Figiel, Appellant, v Met Food et al.,Respondents. |
—[*1] Faust Goetz Schenker & Blee LLP, New York City (Lisa L. Gokhulsingh of counsel), forrespondents.
Appeal from order, Supreme Court, New York County (Barbara R. Kapnick, J.), enteredNovember 21, 2006, which granted defendants' motion on default to strike the complaint anddismissed the action with prejudice, unanimously dismissed, without costs.
Although characterized as a default judgment, relief granted under CPLR 3126 (3) is directlyappealable because such an order is made on notice, thus enabling the defaulting party to contestthe motion (Champion v Wilsey, 150 AD2d 833, 834 [1989]). Here, however, the orderwas based on plaintiff's failure to oppose the motion. No appeal lies from an order entered on thedefault of an aggrieved party (CPLR 5511). Plaintiff's remedy was to move to vacate his defaultand, if that was denied, to appeal the order denying the motion to vacate (see F.W. Myers &Co. v Owsley & Sons, 192 AD2d 927 [1993]).
Were we to consider the issues raised, we would affirm. Dismissal of the complaint was aproper exercise of judicial discretion in light of plaintiff's long-standing pattern ofnoncompliance with court orders and discovery demands (CPLR 3126; see Goldstein v CIBC World Mkts.Corp., 30 AD3d 217 [2006]). Plaintiff's failure to offer a reasonable excuse for hisnoncompliance gives rise to an inference of willful and contumacious conduct (Siegman vRosen, 270 AD2d 14 [2000]). Concur—Lippman, P.J., Tom, Nardelli, Catterson andMoskowitz, JJ.