Appeal from a judgment of the Justice Court of the Village of Suffern, Rockland County (Matthew J. Byrne, J.), entered August 23, 2005, and from an order of said court, entered February 10, 2006. The judgment awarded plaintiff the sum of $2,320 upon defendant's default. The order denied defendant's application to vacate the default judgment.

Appeal dismissed.

In this small claims action, a default judgment was entered against defendant on August 23, 2005. After receiving an income execution, defendant wrote a letter to the court asking it to vacate the default judgment. By order entered February 10, 2006, the court denied defendant's unopposed application.

The appeal from the judgment is dismissed because no appeal lies from a judgment entered upon default (see CPLR 5511). We also dismiss the appeal from the order, since no appeal as of right lies from an order which does not decide a motion made on notice (see UJCA 1702 [a] [2]; CPLR 2211). We note that no notice of motion or supporting affidavits were served upon plaintiff in connection with defendant's application and there was no opposition from plaintiff to defendant's application (cf. Matter of Shanty Hollow Corp. v Poladian, 23 AD2d 132 [1965]; see generally 2 Carmody-Wait 2d § 8:34). Under the circumstances presented, we decline to grant leave to appeal (UJCA 1702 [c]). It should be noted, however, that our disposition is without prejudice to defendant moving in the court below, made on notice to the opposing party, to vacate the default judgment in this matter.

Rudolph, P.J., Lippman and Molia, JJ., concur.
Decision Date: March 9, 2007