| City of Newburgh v 96 Broadway LLC |
| 2010 NY Slip Op 02913 [72 AD3d 632] |
| April 6, 2010 |
| Appellate Division, Second Department |
| City of Newburgh, Respondent, v 96 Broadway LLC et al.,Appellants. |
—[*1] Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Steven I. Milligramand Nicholas A. Pascale of counsel), for respondent.
In an action, inter alia, to compel the defendants to restore their property to its formerappearance, the defendants appeal (1) as limited by their brief, from stated portions of an orderof the Supreme Court, Orange County (Owen, J.), dated May 28, 2008, which, inter alia, deniedthose branches of their cross motion which were to dismiss the complaint insofar as assertedagainst the defendant 96 Broadway, LLC, pursuant to CPLR 3211 (a) (8) for lack of personaljurisdiction and insofar as asserted against the defendant Douglas Dollinger pursuant to CPLR3211 (a) (7) for failure to state a cause of action, and for disclosure pursuant to CPLR 3102 (c);(2) as limited by their brief, from so much of an order of the same court dated July 15, 2008, asgranted the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgmentagainst them and denied that branch of their cross motion which was, in effect, to excuse thedefault or to deem them as having appeared in the action; and (3) a judgment of the same courtentered October 23, 2008, which, upon the orders, is in favor of the plaintiff and against them.
Ordered that the appeals from the orders are dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the plaintiff's motion pursuant to CPLR3215 for leave to enter a default judgment against the defendants is denied, that branch of thedefendants' cross motion which was to deem them as having appeared in the action is granted,the order dated July 15, 2008, is modified accordingly, and the matter is remitted to the SupremeCourt, Orange County, for further proceedings in accordance herewith, including the filing of ananswer; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeals from the intermediate orders must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]). The issues raised on the appeals from those orders are brought up forreview and [*2]have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
Contrary to the Supreme Court's conclusion, the defendants did not default in appearing.After the action was commenced in June 2007, the defendants twice appeared in court, filed apetition to remove the action to federal district court, entered into a stipulation with the plaintiff,and opposed the plaintiff's motion to hold them in contempt. By these acts, the defendantsappeared in the action and, thus, should not have been deemed in default (see Carlin v Carlin, 52 AD3d 559,560-561 [2008]; Matter of Sessa vBoard of Assessors of Town of N. Elba, 46 AD3d 1163 [2007]; Rubenstein vManhattan & Bronx Surface Tr. Operating Auth., 280 AD2d 312 [2001]; Parrotta vWolgin, 245 AD2d 872 [1997]; Quinn v Booth Mem. Hosp., 239 AD2d 266 [1997];Ambers v C.T. Indus., 161 AD2d 256 [1990]; Taylor v Taylor, 64 AD2d 592[1978]).
The defendant Douglas Dollinger's contention that the complaint fails to state a cause ofaction as against him is without merit (see Matter of Morris v New York State Dept. ofTaxation & Fin., 82 NY2d 135, 141 [1993]; John John, LLC v Exit 63 Dev., LLC, 35 AD3d 540, 541 [2006]).
The defendants' remaining contentions are either academic in light of our determination orwithout merit. Covello, J.P., Miller, Leventhal and Chambers, JJ., concur.