| Hodson v Vinnie's Farm Mkt. |
| 2013 NY Slip Op 01182 [103 AD3d 549] |
| February 21, 2013 |
| Appellate Division, First Department |
| Hope Hodson, Respondent, v Vinnie's FarmMarket et al., Appellants. |
—[*1] Alan D. Gordon, New York, for respondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered May 13,2011, which, in this personal injury action, denied defendants' motion to, inter alia,vacate an order, same court and Justice, entered April 30, 2009, on defendants' default,granting plaintiff's motion to strike defendants' answers, and a judgment, same court andJustice, entered July 31, 2009, in plaintiff's favor in the total amount of $201,498.61,following defendants' default at the inquest, and to dismiss the complaint as abandonedpursuant to CPLR 3215 (c), unanimously affirmed, without costs. Appeal from aforesaidorder, entered April 30, 2009, unanimously dismissed, without costs, as taken from anonappealable paper.
No appeal lies from an order entered on default (see Baez-Ferreira v Marte, 86 AD3d 434, 434-435 [1stDept 2011]). Defendants' remedy was an application to vacate the order pursuant toCPLR 5015 (id.).
The court properly declined to dismiss plaintiff's complaint as "abandoned" underCPLR 3215 (c). That subdivision does not apply where, as here, the defendants servedanswers, albeit unverified ones (see Myers v Slutsky, 139 AD2d 709, 710 [2dDept 1988]).
Defendants failed to proffer a reasonable excuse in support of their motion to vacatetheir defaults (see CPLR 5015 [a] [1]; LePatner & Assoc., LLP v Horowitz, 81 AD3d 472 [1stDept 2011]). The record belies defendants' claims that they believed the action wasdiscontinued and that they were not served with various documents in this action,including notice of plaintiff's motion to strike their answers. Indeed, the record showsthat defendants were served with and received notice of plaintiff's motion, and that theyalso failed to respond to approximately 39 letters, notices, demands, and correspondenceregarding the action. In any event, defendants waived any objection to personaljurisdiction by not raising it in a pre-answer motion or in their answers (CPLR 3211 [e]).
In view of defendants' lack of a reasonable excuse for their defaults, it is unnecessaryto consider whether they have demonstrated a meritorious defense (see Aaron v Greenberg & Reicher,LLP, 68 AD3d 533, 534 [1st Dept 2009]).
Defendants failed to preserve their challenge to the amount of the judgment awardedto plaintiff, since they never objected to the amount at the trial level (see generally Griffin v Clinton[*2]Green S., LLC, 98 AD3d 41, 47 [1st Dept2012]). In any event, were we to review their argument, we would find that the amountawarded is not excessive. Concur—Andrias, J.P., Saxe, DeGrasse, Abdus-Salaamand Feinman, JJ. [Prior Case History: 2011 NY Slip Op 31264(U).]