Padilla v. DaSilva

Order, Supreme Court, New York County (Robert E. White, J.), entered on or about May 9, 1990, denying defendants’ motion pursuant to CPLR 5015 to vacate a default, unanimously affirmed, with costs and disbursements. Appeal from the order of said court, entered on or about April 12, 1990, striking defendants’ answer and setting the matter down for inquest, is unanimously dismissed as nonappealable, without costs and without disbursements. The appeal from the order dated April 12, 1990 is dismissed, as no appeal lies from an order entered upon the default of the aggrieved party. (CPLR 5511.) Notwithstanding the short delay occasioned by the default, defendants’ repeated failure to appear for trial of this matter and counsel’s repeated evasions, in an effort to demonstrate a legally excusable default, demonstrate that the court did not abuse its discretion in denying the motion to vacate the default. (Raphael v Cohen, 62 NY2d 700, 701.) Counsel’s affirmation contained numerous claims, either completely belied by the record or incredible. (Cari v Pastore, 142 AD2d 799, 800.) Defendants have also failed to demonstrate the existence of a meritorious defense. (Eisenstein v Rose, 135 AD2d 369, 370.) Concur—Murphy, P. J., Kupferman, Ross and Ellerin, JJ.