| Matter of County of Albany (Bowles) |
| 2012 NY Slip Op 00262 [91 AD3d 1132] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Foreclosure of Tax Liens "by County ofAlbany", Respondent. Thomas E. Bowles, Appellant. |
—[*1] Craig A. Denning, County Attorney, Albany (Gregory A. Rutnik of counsel), forrespondent.
Rose, J. Appeals (1) from an order of the County Court of Albany County (Doyle, J.), enteredDecember 8, 2008, which, in a proceeding pursuant to RPTL article 11, among other things,granted petitioner's motion for summary judgment, and (2) from an order of said court, enteredNovember 23, 2009, which denied respondent's motion to vacate a default judgment enteredagainst him.
Petitioner commenced this proceeding pursuant to RPTL article 11 to foreclose unpaid taxliens against a rental property owned by respondent. When respondent answered through counsel,petitioner moved for summary judgment on the ground, among others, that the answer had nomerit. Respondent then discharged his counsel but did not personally appear or submit papers inopposition to the motion. Instead, respondent's rental agent, who is not a licensed attorney,attempted to oppose the motion orally on the return date as respondent's attorney-in-fact. CountyCourt declined to hear the rental agent and granted the motion by an order entered in December2008. In October 2009, respondent moved "to vacate a default judgment," referring to theDecember 2008 order. County Court denied the motion to vacate and respondent appeals fromboth orders.[*2]
Initially, we must dismiss respondent's appeal from theDecember 2008 order granting petitioner's motion for summary judgment upon his default(see CPLR 5511). County Court appropriately treated respondent's failure to formallyoppose the motion as a default, and his only recourse was to move to vacate the order (see M & C Bros., Inc. v Torum, 75AD3d 869, 870 [2010]; MortgageElec. Registration Sys., Inc. v Schuh, 48 AD3d 838, 840 [2008], appealdismissed 10 NY3d 951 [2008]). Further, contrary to respondent's argument, it was not errorto prohibit his rental agent from appearing on his behalf (see Whitehead v Town HouseEquities, Ltd., 8 AD3d 369, 370 [2004]).
Nor did County Court err by denying respondent's motion to vacate the default. The motionpapers were insufficient because they failed to proffer both a reasonable excuse for the defaultand a meritorious defense in the underlying proceeding (see CPLR 5015 [a] [1]; Matter of Clinton County [Miner], 39AD3d 1015, 1016 [2007]). Finally, respondent's remaining claims are either unpreserved orcannot be reviewed because they are based on material outside the record on appeal (seeGagen v Kipany Prods., 289 AD2d 844, 845 [2001]; Ughetta v Barile, 210 AD2d562, 564 [1994], lv denied 85 NY2d 805 [1995]).
Mercure, A.P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the appealfrom the order entered December 8, 2008 is dismissed, without costs. Ordered that the orderentered November 23, 2009 is affirmed, without costs.