741 E. 3rd, LLC v Alamin

[*1] 741 E. 3rd, LLC v Alamin 2012 NY Slip Op 50624(U) Decided on April 4, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and ALIOTTA, JJ
2011-266 K C.

741 E. 3rd, LLC, Respondent,

against

Hassan O. Alamin, Appellant.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Cheryl J. Gonzales, J.), entered October 19, 2010. The final judgment, entered upon tenant's failure to appear for trial, awarded landlord possession and the sum of $6,764.76 in a nonpayment summary proceeding. The appeal from the final judgment brings up for review orders of the same court dated July 6, 2010 and July 28, 2010 which, respectively, denied tenant's motion to dismiss the petition and, upon, in effect, granting the branch of tenant's motion seeking leave to reargue his prior motion to dismiss the petition, adhered to the prior determination.

ORDERED that the appeal from the final judgment is dismissed except insofar as it brings up for review the orders dated July 6, 2010 and July 28, 2010; and it is further,

ORDERED that the final judgment, insofar as reviewed, is affirmed, without costs.

In this nonpayment proceeding, tenant appeals from a final judgment entered upon his failure to appear for trial. As no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511), tenant's appeal from the default final judgment must be dismissed except insofar as the appeal brings up for review the pre-judgment orders, which decided matters that "were the subject of contest" (James v Powell, 19 NY2d 249, 256 n 3 [1967]; see HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d 1061 [2011]; Dervisevic v Dervisevic, 89 AD3d 785 [2011]). Tenant's challenge to the order entered July 6, 2010, denying his motion to dismiss the petition, and the order entered July 28, 2010, which, upon, in effect, granting tenant leave to reargue the prior motion to dismiss the petition, adhered to the prior order, is unavailing. Tenant's contention that the affidavit of service of the petition and notice of petition, which affidavit is notarized and signed by the notary public, is defective because it does not contain the notary public's stamp was not raised in the motions giving rise to the orders being reviewed and, thus, was waived. In any event, tenant's contention lacks merit (see Executive Law § 137; Cohen v Sovalsky, 124 Misc 368 [1925]). Tenant also seeks to challenge the propriety of the Civil Court's orders denying his post-judgment motions to vacate the default final judgment. However, the appeal from the default final judgment does not bring up for review the post-judgment orders (see generally 10A Carmody-Wait 2d § 70:317).

Accordingly, the final judgment, insofar as reviewed, is affirmed.

Pesce, P.J., Golia and Aliotta, JJ., concur.
Decision Date: April 04, 2012