Matter of Iwachiw v. Board of Elections in the City of N.Y.

Matter of Iwachiw v Board of Elections in the City of N.Y. (2021 NY Slip Op 03016) Matter of Iwachiw v Board of Elections in the City of N.Y. 2021 NY Slip Op 03016 Decided on May 12, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: May 12, 2021 Before: Acosta, P.J., Renwick, Mazzarelli, Mendez, Shulman, JJ. Index No. 100383/21 Appeal No. 13971 Case No. 2021-01583 [*1]In the Matter of Walter Iwachiw, Petitioner-Appellant, v Board of Elections in the City of New York, Respondent-Respondent. Walter Iwachiw, appellant pro se. James E. Johnson, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for respondent. Appeal from order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 23, 2021, which, upon petitioner's default, dismissed his petition against the New York City Board of Elections, with prejudice, unanimously dismissed, without costs, as taken from a nonappealable order. Since the underlying order was decided upon petitioner's default it was not appealable (CPLR 5511), and the proper procedure was for petitioner to move to vacate his default pursuant to CPLR 5015 (see Kamen v Weithorn, 83 AD3d 560, 561 [1st Dept 2011]; Jackson v Jackson, 7 AD3d 404, 404-405 [1st Dept 2004]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: May 12, 2021