Yellow Book Sales & Distrib. Co., Inc. v Henry B. Whitaker, Inc.

[*1] Yellow Book Sales & Distrib. Co., Inc. v Henry B. Whitaker, Inc. 2010 NY Slip Op 50699(U) [27 Misc 3d 132(A)] Decided on April 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2009-393 W C.

Yellow Book Sales and Distribution Company, Inc. f/k/a YELLOW BOOK USA, INC., Respondent,

against

Henry B. Whitaker, Inc. d/b/a WHITAKER OVERHEAD DOOR, Appellant.

Appeal from two orders of the Supreme Court, Westchester County (Aldo A. Nastasi, J.), dated, respectively, February 25, 2008 and April 10, 2008, and from a judgment of the Justice Court of the Town of Yorktown, Westchester County (David S. Zuckerman, J.), entered June 26, 2008. The order dated February 25, 2008 denied defendant's motion to restore the case to the Supreme Court calendar. The order dated April 10, 2008, insofar as appealed from, upon, in effect, granting leave to reargue the prior motion, again denied defendant's motion to restore the case to the Supreme Court calendar. The judgment, after an inquest, awarded plaintiff the principal sum of $5,317.58.

ORDERED that so much of the appeal as is from the orders dated February 25, 2008 and April 10, 2008 is transferred to the Appellate Division, Second Department; and it is further,

ORDERED that the appeal from the judgment is dismissed.

This action to recover the principal sum of $5,317.58 for advertising services was commenced in the Supreme Court, Westchester County. By order dated January 5, 2007, the Supreme Court (Aldo A. Nastasi, J.) sua sponte transferred the action to the Justice Court of the Town of Yorktown (see CPLR 325 [d]), upon a finding that the potential recovery on each of two severable causes of action would not exceed $5,000. Thereafter, defendant moved in the Supreme Court to restore the action to the Supreme Court calendar, apparently on the ground that defendant had served an answer containing counterclaims for $75,000 and $50,000. By order dated February 25, 2008, the Supreme Court (Aldo A. Nastasi, J.) denied defendant's motion, stating that the "purported service by defendant of an answer well beyond the statutory period and without leave of Court is a nullity and does not divest the Town Court of Yorktown of [*2]jurisdiction in this matter." Whereupon, defendant moved in the Supreme Court for leave to reargue the prior motion. Upon, in effect, granting leave to reargue, the Supreme Court (Aldo A. Nastasi, J.), by order dated April 10, 2008, again denied defendant's application to restore the matter to the Supreme Court calendar. Thereafter, the Justice Court, ruling that it was constrained by the Supreme Court orders deeming the answer a nullity, conducted an inquest and awarded plaintiff a default judgment in the principal sum of $5,317.58. This appeal ensued.

The law is clear that no appeal lies from a judgment entered on default (CPLR 5511; see Landmark Aviation v De Marmels, 63 AD2d 964 [1978]; Bottiglieri v Reilly, 15 Misc 3d 135[A], 2007 NY Slip Op 50750[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, the appeal from the judgment is dismissed.

So much of the appeal as is from the Supreme Court orders dated February 25, 2008 and April 10, 2008 is transferred, pursuant to NY Constitution article VI, § 5 (b), to the Appellate Division, which is the court that is authorized to review those orders (see Mears v Chrysler Fin. Corp., 243 AD2d 270 [1997]).

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: April 13, 2010