Kastberg v. JLM Land Development Corp.

—In an action, inter alia, to recover a down payment on a contract for the purchase of real property, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered May 31, 2000, which, inter alia, dismissed the action on the ground that the parties defaulted in selecting a jury. Ordered that the appeal is dismissed, without costs or disbursements. The order appealed from incorporates a number of oral rulings by the trial court, which were made sua sponte or based upon oral applications. An order which does not decide a motion made on notice is not appealable as of right (see, CPLR 5701 [a] [2]; Vohs-Holowecki v Halpak Plastics, 276 AD2d 789; State of New York v City of New York, 275 AD2d 740; Con-Solid Contr. v Litwak Dev. Corp., 266 AD2d 424) and leave to appeal has not been granted. To the extent that the order dismissed the action on the ground that the parties defaulted in selecting a jury, the law is well settled that no appeal lies from an order entered upon the default of the appealing party (see, CPLR 5511). The proper remedy is to move to vacate the default, and, if necessary, appeal from the order deciding that motion (see, Matter of Layne v Wyllie, 277 AD2d 239). Santucci, J. P., S. Miller, Friedmann and Goldstein, JJ., concur.