Muniz v. Muschette

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated April 8, 2002, as, upon granting the plaintiffs motion for reargument upon his default in opposing the motion, in effect, vacated a prior order of the same court dated July 24, 2002, and denied his motion for summary judgment dismissing the complaint on the ground that the [385] plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the appeal is dismissed, with costs. No appeal lies from an order made upon the default of the appealing party (see CPLR 5511). The proper procedure is to move to vacate the default and, if necessary, appeal from the order determining that motion (see Smith v Richards, 286 AD2d 393 [2001]; High v Coletti, 143 AD2d 810 [1988]). Florio, J.P., S. Miller, Adams and Rivera, JJ., concur.