Hull v. Feinberg

Motion to dismiss appeal granted, without costs. By notice of appeal dated July 3, 1985, appellants seek to appeal to this court from an order entered May 20, 1985. The present motion to dismiss is based on the contention that the notice of appeal was not timely served and filed. It appears from an affidavit of service that the order sought to be appealed, together with notice of entry, was served on appellants’ attorney by mail on May 22, 1985. Although the attorney for appellants alleges that the order with notice of entry was not received by him until July 1, 1985, service by mail was complete regardless of delivery to claimant (see, A & B Serv. Sta. v State of New York, 50 AD2d 973, lv denied 39 NY2d 709). In any event, it appears on the face of the order appealed from, and the fact is admitted, that the motion was not opposed at Special Term. A party may not appeal from an order entered upon his default and the proper remedy is to seek to open the default (Morse v Morse, 67 AD2d 750). Mahoney, P. J., Kane, Main, Levine and Harvey, JJ., concur.