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In the Matter of the

State of New York Supreme Court, Appellate Division Third Judicial Department


January 19, 2012

IN THE MATTER OF THE FORECLOSURE OF TAX LIENS BY COUNTY OF ALBANY. COUNTY OF ALBANY,
RESPONDENT; THOMAS E. BOWLES, APPELLANT.

Appeals (1) from an order of the County Court of Albany County (Doyle, J.), entered December 8, 2008, which, in a proceeding pursuant to RPTL article 11, among other things, granted petitioner's motion for summary judgment, and (2) from an order of said court, entered November 23, 2009, which denied respondent's motion to vacate a default judgment entered against him.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: November 14, 2011

Before: Mercure, Acting P.J., Rose, Lahtinen, Kavanagh and McCarthy, JJ.

Petitioner commenced this proceeding pursuant to RPTL article 11 to foreclose unpaid tax liens against a rental property owned by respondent. When respondent answered through counsel, petitioner moved for summary judgment on the ground, among others, that the answer had no merit. Respondent then discharged his counsel but did not personally appear or submit papers in opposition to the motion. Instead, respondent's rental agent, who is not a licensed attorney, attempted to oppose the motion orally on the return date as respondent's attorney-in-fact. County Court declined to hear the rental agent and granted the motion by an order entered in December 2008. In October 2009, respondent moved "to vacate a default judgment," referring to the December 2008 order. County Court denied the motion to vacate and respondent appeals from both orders.

Initially, we must dismiss respondent's appeal from the December 2008 order granting petitioner's motion for summary judgment upon his default (see CPLR 5511). County Court appropriately treated respondent's failure to formally oppose the motion as a default, and his only recourse was to move to vacate the order (see M & C Bros., Inc. v Torum, 75 AD3d 869, 870 [2010]; Mortgage Elec. Registration Sys., Inc. v Schuh, 48 AD3d 838, 840 [2008], appeal dismissed 10 NY3d 951 [2008]). Further, contrary to respondent's argument, it was not error to prohibit his rental agent from appearing on his behalf (see Whitehead v Town House Equities, Ltd., 8 AD3d 369, 370 [2004]).

Nor did County Court err by denying respondent's motion to vacate the default. The motion papers were insufficient because they failed to proffer both a reasonable excuse for the default and a meritorious defense in the underlying proceeding (see CPLR 5015 [a] [1]; Matter of Clinton County [Miner], 39 AD3d 1015, 1016 [2007]). Finally, respondent's remaining claims are either unpreserved or cannot be reviewed because they are based on material outside the record on appeal (see Gagen v Kipany Prods., 289 AD2d 844, 845 [2001]; Ughetta v Barile, 210 AD2d 562, 564 [1994], lv denied 85 NY2d 805 [1995]).

Mercure, Acting P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the appeal from the order entered December 8, 2008 is dismissed, without costs.

ORDERED that the order entered November 23, 2009 is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120119

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