Atlantic Credit & Fin., Inc. v Rivera

[*1] Atlantic Credit & Fin., Inc. v Rivera 2009 NY Slip Op 51148(U) [23 Misc 3d 147(A)] Decided on June 8, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1281 K C.

Atlantic Credit & Finance, Inc. as assignee of HOUSEHOLD BANK, Respondent,

against

Frank Rivera, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered March 25, 2008. The order denied defendant's motion seeking, in effect, to open his default and restore the matter to the trial calendar.

Appeal dismissed.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated upon the subsequent entry of a default judgment in this action (see Matter of Aho, 39 NY2d 241 [1976]; Woodhaven Assoc., Inc. v Woodhaven Blvd. Rest., Inc., 46 AD3d 679 [2007]; Fordham Gen. Constr. Co., Inc. v White, 12 Misc 3d 127[A], 2006 NY Slip Op 50914[U] [App Term, 2d & 11th Jud Dists 2006]). We note that a party may appeal from a judgment entered upon his default for the purpose of bringing up for review a prior contested order which necessarily affects the final judgment (see James v Powell, 19 NY2d 249 [1967]; Conserv Elec., Inc. v Tulger Contr. Corp., 26 AD3d 354 [2006]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 2009