Mill Valley Celebrity Homes, Ltd. v. Empbanque Capital Corp.

— Order unanimously affirmed with costs. Memorandum: Plaintiff contends that the trial court erred in vacating the New York filing of its Ohio judgment against defendants. The record establishes that the Ohio judgment was taken by default. Defendants neither answered plaintiff’s complaint nor moved against it in the Ohio action. Further, plaintiff concedes that defendants’ filing of two stipulations to extend the time to answer in the Ohio action did not constitute an appearance under CPLR 320 (a). Because judgment was taken in Ohio by "default in appearance”, the trial court properly found that plaintiff was not authorized to register the foreign judgment in New York *950(CPLR 5401). (Appeal from Order of Supreme Court, Erie County, Gorski, J. — Summary Judgment.) Present — Denman, P. J., Doerr, Green, Balio and Lawton, JJ.