[Download] "Charles F. Harding v. New York State Teamsters Council Welfare Trust Fund" by Supreme Court of New York * Book PDF Kindle ePub Free
eBook details
- Title: Charles F. Harding v. New York State Teamsters Council Welfare Trust Fund
- Author : Supreme Court of New York
- Release Date : January 20, 1978
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 77 KB
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[60 A.D.2d 975 Page 975] Appeal unanimously dismissed, with costs. Memorandum: Default judgment in the sum of $921 and costs was entered by plaintiff against defendant in Buffalo City Court, Small Claims Part, on June 30, 1976. Defendant moved in that court for an order opening the default judgment and dismissing the complaint on the ground of lack of jurisdiction and on the merits. The motion was denied and an order was entered accordingly. Defendant appealed to the Erie County Court, alleging lack of jurisdiction and abuse of discretion by City Court in refusing to open the default. County Court found that defendant had every opportunity to appear in City Court, but chose to rely on papers which it submitted to the court, and, therefore, that it submitted to the jurisdiction of the court; and County Court affirmed the City Court order denying the motion to open the default. CPLR 5703 (subd [b]) provides that an appeal may be taken to the Appellate Division as of right from an order of a County Court or a Special Term of the Supreme Court which determines an appeal from a judgment of a lower court. Here County Court affirmed an order of the City Court which denied defendant's motion to open a default judgment. Since County Court affirmed only an order, CPLR 5703 (subd [b]) does not grant to defendant an appeal as of right to the Appellate Division (see Lincoln Rochester Trust Co. v Howard, 53 A.D.2d 1037; Lutwack v Piteo, 52 A.D.2d 754; Serrino v D & B Barr, Inc., 37 A.D.2d 912). Since defendant did not seek and obtain permission to take this appeal, it must be dismissed. We have, however, considered the merits of the appeal and, if we were to decide the merits, we would affirm (see Lutwack v Piteo, supra; Serrino v D & B Barr, Inc., supra). In commencing this action in Small Claims Court plaintiff waived his right to appeal, except that either party may appeal on the sole grounds that substantial justice has not been done between the parties (UCCA, § 1807) (emphasis added); and Small Claims Court is not bound by [60 A.D.2d 975 Page 976]