Norberto & Sons, Inc. v. Burman

—In an action to recover damages for breach of contract, the defendants appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Kutner, J.), dated September 21, 1988, as conditioned the granting of their motion to vacate a default judgment upon their paying the Sheriff’s poundage fee. Ordered that the order is affirmed insofar as appealed from, with costs. Since the plaintiff’s entry of a default judgment and its issuance of execution to the Sheriff were triggered by the defendants’ failure to timely answer the complaint, we discern no impropriety in the Supreme Court’s conclusion that the defendants were liable for any poundage fees due and owing upon the court’s vacatur of the defendants’ default (see, CPLR 8012 [b] [2]; Red Cheek v Crown Confections, 129 AD2d 787, 788). Mangano, P. J., Bracken, Kooper and Balletta, JJ., concur.