Patel v Do & Co N.Y. Catering, Inc.

[*1] Patel v Do & Co N.Y. Catering, Inc. 2010 NY Slip Op 50701(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-522 K C.

Sanjay D. Patel, Appellant,

against

Do & Co New York Catering, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 14, 2009. The order granted defendant's motion to vacate a default judgment.

ORDERED that the appeal is dismissed.

In this small claims action seeking to recover unpaid wages and business expenses, defendant failed to appear on the adjourned trial date, and a default judgment was entered in favor of plaintiff. By order entered January 14, 2009, the Civil Court granted defendant's ensuing motion to vacate the default judgment. Plaintiff appeals from that order. Following vacatur of the judgment, the parties consented to submit their controversy to arbitration and stipulated that no appeal would lie from the judgment entered upon the arbitration award. A judgment was subsequently entered.

Plaintiff's appeal must be dismissed as no direct appeal lies from an intermediate order following the entry of a final judgment (see Matter of Aho, 39 NY2d 241 [1976]). We note that, in view of the parties' waiver of the right to appeal, no appeal may be taken from the judgment entered pursuant to the award by the small claims arbitrator (see Santos v Ortiz, 3 Misc 3d 137[A], 2004 NY Slip Op 50513[U] [App Term, 2d & 11th Jud Dists 2004]; Molloy v Froyton, 124 Misc 2d 865 [1984]; see also Brownstein v County of Westchester, Dept. of Parks, Recreation & Conservation, 51 AD2d 792 [1976]).

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 13, 2010