SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 17, 1969
LEON BERNSTEIN, RESPONDENT,
ALEXANDER ZAWASKI ET AL., DOING BUSINESS AS ZAWASKI BROTHERS, APPELLANTS
Concur -- Capozzoli, J. P., Tilzer, McGivern, Markewich and Nunez, JJ.
Appeal dismissed without prejudice to an application by appellants at Special Term to vacate the ex parte order entered January 29, 1969 striking their answer and directing an assessment of damages, with $30 costs and disbursements to respondent. When we denied plaintiff's prior motion to dismiss the appeal the record did not disclose sufficient facts from which it could be determined that the appeal was from an ex parte order. It was indicated that the order appealed from had been entered on notice but on defendant's default. It now appears that this was not the fact. The order had been obtained without any notice to defendants and it is, therefore, unappealable. (See CPLR 5701, subd. [a], par. 2; 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5701.06; Matter of 350 West Forty-Sixth St., 20 A.D.2d 685; McCormick v. Mars Assoc., 25 A.D.2d 433.) By moving to vacate the order entered January 29, 1969, a record can be made in which appellants may proffer the excuse, if any, for their failure to comply with the order dated December 26, 1968.
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