Santos v Ortiz

[*1] Santos v Ortiz 2004 NY Slip Op 50513(U) Decided on May 28, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 28, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-1415 Q C

ADELINO SANTOS, Appellant,

against

ROBERT ORTIZ and MYRNA ESTRADA, Respondents.

Appeal by plaintiff from an order of the Small Claims Part of the Civil Court, Queens County (A. Gazzara, J.), entered on August 1, 2003, which granted defendants' motion to vacate a default judgment.

Appeal unanimously dismissed.

No appeal lies from an order the effect of which is to require the parties to proceed to trial in a small claims action. The order granting defendants' motion to vacate a default judgment merely restored the action to the calendar and does not constitute a denial of substantial justice, which is the sole ground for an appeal in a small claims action (see UDCA 1807; Chaloupka v Nassau Travel Center, NYLJ, Feb.
1, 1980 [App Term, 9th & 10th Jud Dists]). We note, in any event, that defendant's motion was unopposed by plaintiff and no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; Viggiani v Grodotzke, 306 AD2d 273, 274 [2003]). Furthermore, the issue of substantial justice is generally raised only following the entry of a judgment. In the instant case, following vacatur of the judgment, the parties proceeded to arbitration and judgment was entered pursuant to the award of the arbitrator. Such a judgment is final and binding, and no appeal lies therefrom (see Molloy v Froyton, 124 Misc 2d 865 [1984])
Decision Date: May 28, 2004