Key Takeaway
Court ruling clarifies when failure to oppose venue change motions creates appealable default orders in New York civil procedure.
Understanding when a court order constitutes a default judgment is crucial in New York civil litigation. The distinction affects whether parties can appeal the decision and what procedural rights they retain. A recent First Department case provides important guidance on this issue, specifically addressing venue change motions and the consequences of failing to oppose them.
The case involves fundamental questions about default orders and appellate rights. When a plaintiff fails to submit any opposition to a motion, courts must determine whether the resulting order was entered “upon default” — a classification that significantly impacts the parties’ ability to seek appellate review. This determination can be particularly complex in situations involving questionable appeals where procedural missteps occur.
Jason Tenenbaum’s Analysis:
Turner v Owens Funeral Home, Inc., 2017 NY Slip Op 03128 (1st Dept. 2017)
“Because plaintiffs did not submit any opposition to the motions to change venue, and the order granting the motions was entered without consideration of any arguments by plaintiffs, whether oral or written, the order was entered upon plaintiffs’ default, and is not appealable (see CPLR 5511; Liberty Community Assoc., LP v DeClemente, 139 AD3d 532, 532 ; cf. Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695, 696 [order was not entered upon the respondent’s default where, among other things, the court addressed the arguments presented by the respondent in her oral opposition to the motion]).”
Key Takeaway
The First Department clarified that when parties fail to submit any written or oral opposition to a motion, the resulting order is entered “upon default” and cannot be appealed under CPLR 5511. This contrasts with situations where courts consider and address a party’s arguments, even minimal ones. The ruling emphasizes the importance of submitting some form of opposition to preserve appellate rights, as default reversals can have significant consequences for litigation strategy.
