Hilton Wiener, LLC v. Anderson

Hilton Wiener, LLC v Anderson (2022 NY Slip Op 02195) Hilton Wiener, LLC v Anderson 2022 NY Slip Op 02195 Decided on March 31, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: March 31, 2022 Before: Gische, J.P., Oing, Scarpulla, Shulman, Higgitt, JJ. Index No. 650858/19 Appeal No. 15623 Case No. 2021-00719 [*1]Hilton Wiener, LLC, Plaintiff-Respondent, v Lowell Anderson, Defendant-Appellant. Steven G. Legum, Mineola, for appellant. Paul T. Vink, P.C., White Plains (Paul T. Vink of counsel), for respondent. Appeal from judgment, Supreme Court, New York County (Nancy M. Bannon, J.), entered February 25, 2021, granting plaintiff Hilton Wiener, LLC legal fees in the amount of $35,355, plus interest, costs, and disbursements, for a total sum of $45,993.21, unanimously dismissed, without costs. No appeal lies from an order entered upon the default of the appealing party (see Matter of Derick B. v Catherine L., 155 AD3d 511, 512 [1st Dept 2017]). Although defendant argues that the default was improperly entered against him before the scheduled return date of the motion, once Supreme Court granted the motion, defendant should have moved to vacate the default. Given the procedural posture, defendant was required to make a showing of a potentially meritorious defense and a reasonable excuse for the delay, at which time he could have included his argument that the court had prematurely entered a default against him (see Matter of Jabuki M. v Nicole B., 196 AD3d 405 [1st Dept 2021]; Deutsch v Deutsch, 194 AD3d 542 [1st Dept 2021]). Defendant failed to do so. The fact that defendant submitted opposition after the deadline does not change this result (see Vassiliou-Sideris v Nautilus, Inc., 186 AD3d 1756, 1757 [2d Dept 2020]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 31, 2022