Cach, LLC v Harris

[*1] Cach, LLC v Harris 2010 NY Slip Op 50603(U) [27 Misc 3d 129(A)] Decided on April 2, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-960 K C.

Cach, LLC, Appellant,

against

Nataki Harris, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered April 24, 2009. The order granted defendant's motion to vacate a stipulation of settlement and restore the case to the calendar to the extent of setting the matter down for a hearing.

ORDERED that the appeal is dismissed.

Plaintiff commenced this consumer credit action to recover the unpaid balance of a credit card account. Defendant failed to appear or answer, and a default judgment was entered in the amount of $1,411.91 against her in October 2008. In December 2008, by a so-ordered stipulation, the parties agreed to vacate the default judgment and settle the matter for $700, which sum defendant had to pay in full by January 18, 2009. Defendant failed to pay and, thereafter, moved to vacate the stipulation and restore the case to the calendar. The Civil Court granted the motion to the extent of setting the matter down for a hearing. The instant appeal by plaintiff ensued.

No appeal lies from an order which directs a hearing to aid in the disposition of a motion (Hochhauser v Electric Ins. Co., 46 AD3d 174, 185 [2007]; Astuto v NewYork Univ. Med. Ctr., 97 AD2d 805 [1983]; Brown v Dodd, 21 Misc 3d 143[A], 2008 NY Slip Op 52462[U] [App Term, 2d & 11th Jud Dists 2008]). Moreover, defendant failed to appear at the hearing scheduled with respect to the instant motion to vacate the stipulation and the motion was denied, rendering the appeal moot. Accordingly, the appeal is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: April 02, 2010