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Posted: October 8, 2018

No Appeal From Default Judgment; Appellant Should Have Moved to Vacate and Appealed The Denial

On September 28, 2018, the Fourth Department issued a decision inĀ Montanaro v. Weichert, 2018 NY Slip Op. 06354, holding that there is no appeal from a default judgment, explaining:

It is well settled that no appeal lies from an order or judgment entered on default, and thus the appeal must be dismissed.

Defendants’ remedy was to move to vacate the default judgment, then appeal from an order denying their motion to vacate the default judgment. It appears that at least one of the defendants moved to vacate the default judgment and the court denied that motion and, although an appeal from a judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, no such non-final order is included in the record on appeal. Defendants, as the appellants, submitted this appeal on an incomplete record and must suffer the consequences.

(Internal quotations and citations omitted).

New York is very liberal in allowing the appeal of decisions made before a final judgment is entered. However, this decision shows that not everything is appealable. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure whether a decision can be appealed.

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