Haefeli v. Raisman

OPINION OF THE COURT

Memorandum.

Judgment unanimously reversed without costs and -matter remanded to the court below for further proceedings.

Appeal from the “decision” unanimously dismissed.

There is no provision in the Uniform Civil Rules for the Justice Courts (22 NYCRR part 214) requiring an appearance by a party on the return date of a motion, nor is there a provision analogous to the Uniform Civil Rules for the New York City Civil Court providing that a party may be directed to appear at oral argument (see, 22 NYCRR 208.11). Accordingly, defendant’s failure to appear on the return date of his motion to dismiss the summons and indorsed complaint did not constitute a default, and no “default judgment” could be granted thereupon in favor of plaintiff.

Defendant’s appeal from so much of the “judgment” as purportedly denied his motion to dismiss the summons and indorsed complaint is in effect an appeal from an oral decision rendered by the court which does not constitute a proper appealable order (see, CPLR 2219; Matter of Dondi, 63 NY2d 331). In any event, even had an order been entered, it would have been subsumed in the judgment.

DiPaola, P. J., Floyd and Palella, JJ., concur.