By Dillon, J.P.; Duffy, Barros, Connolly, JJ. PERI W. FELDMAN, app, v. MEIER FELDMAN, res — (Index No. 33404/02) Hudi Horowitz, named herein as Peri W. Feldman, Bet Shemesh, Israel, appellant pro se. Elliott S. Martin, Brooklyn, NY (Kathryn A. Palillo of counsel), for respondent. In a matrimonial action, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Eric I. Prus, J.), dated February 17, 2016, (2) an amended judgment of divorce of the same court dated May 9, 2016, and (3) an order of the same court dated May 5, 2017. The order dated February 17, 2016, in effect, granted those branches of the defendant’s motion which were to modify the child support and maintenance provisions of the parties’ judgment of divorce. The amended judgment of divorce, insofar as appealed from, upon the order dated February 17, 2016, awarded the defendant a downward modification of his child support obligation and vacated his maintenance obligation. The order dated May 5, 2017, granted the defendant’s motion to declare the parties’ child emancipated, to declare that so long as the child remained emancipated, the defendant was not required to pay child support, and to modify the amended judgment of divorce to state that no child support was past due or presently due to the plaintiff. Motion by the defendant, in effect, to dismiss the appeals from the order dated February 17, 2016, and the amended judgment of divorce on the ground that the order dated February 17, 2016, and the amended judgment of divorce were entered upon the default of the appealing party. By decision and order on motion of this Court dated November 29, 2016, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof. Separate motion by the defendant, inter alia, to dismiss the appeal from the order dated May 5, 2017, as abandoned. By decision and order on motion of this Court dated May 22, 2018, the branch of the separate motion which is to dismiss the appeal from the order dated May 5, 2017, was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof. Upon the papers filed in support of the motions and the papers filed in opposition thereto, and upon the submission of the appeals, it is ORDERED that the motion, in effect, to dismiss the appeals from the order dated February 17, 2016, and the amended judgment of divorce is granted; and it is further, ORDERED that the branch of the separate motion which is to dismiss the appeal from the order dated May 5, 2017, is denied; and it is further, ORDERED that the appeals from the order dated February 17, 2016, and the amended judgment of divorce are dismissed, without costs or disbursements; and it is further, ORDERED that the order dated May 5, 2017, is affirmed, without costs or disbursements. In the parties’ judgment of divorce, the defendant was directed to pay the plaintiff child support and maintenance. The defendant later moved, inter alia, to modify the child support and maintenance provisions of the judgment of divorce. On October 28, 2015, the Supreme Court was scheduled to hear argument and consider whether to a hold a hearing on the defendant’s motion. When the plaintiff failed to appear on that date, the court stated that it would modify the defendant’s child support obligation and vacate his maintenance obligation. In an order dated February 17, 2016, the court, in effect, granted those branches of the defendant’s motion which were to modify the child support and maintenance provisions of the judgment of divorce. In an amended judgment of divorce, upon the order, the court awarded the defendant a downward modification of his child support obligation and vacated his maintenance obligation. The defendant subsequently moved to declare the parties’ child emancipated based on the child’s marriage, to declare that so long as the child remained emancipated, the defendant was not required to pay child support, and to modify the amended judgment of divorce to state that no child support was past due or presently due to the plaintiff. In an order dated May 5, 2017, the Supreme Court granted the defendant’s motion. The plaintiff appeals from the amended judgment of divorce and the orders dated February 17, 2016, and May 5, 2017. “No appeal lies from an order [or judgment] made upon the default of the appealing party” (Matter of Saporito v. Ward, 160 AD3d 651, 651 [internal quotation marks omitted]; see CPLR 5511). The proper procedure is for the defaulting party to seek to vacate its default and, if necessary, appeal the denial of that request (see Matter of Saporito v. Ward, 160 AD3d at 651). Contrary to the plaintiff’s contention, her failure to appear on October 28, 2015, constituted a default. The plaintiff did not seek to vacate her default, and the default precludes consideration of the issues that she seeks to raise concerning the order dated February 17, 2016, and the amended judgment of divorce (see CVM Partners 1, LLC v. Adams, 173 AD3d 971). Accordingly, the plaintiff’s appeals from the order dated February 17, 2016, and so much of the amended judgment of divorce as awarded the defendant a downward modification of his child support obligation and vacated his maintenance obligation, entered upon her default, must be dismissed (see CPLR 5511; Matter of Saporito v. Ward, 160 AD3d at 651). The plaintiff’s only argument raised with respect to the order dated May 5, 2017, i.e., that the Supreme Court was biased against her, is not properly before this Court and, in any event, without merit (see Matter of Baby Girl Z. [Yaroslava Z.], 140 AD3d 893, 894). DILLON, J.P., DUFFY, BARROS and CONNOLLY, JJ., concur.
By Chambers, J.P.; Hinds-Radix, Lasalle, Wooten, JJ. HURRICANE KATRINA BARGE LITIGATION JOINT VENTURE, LLC, plf-res, v. LAW OFFICE OF RICHARD T. SEYMOUR, PLLC, app, HAMILTON CAPITAL VII, LLC, def-res, ET AL., def — (Index No. 607358/17) Eisenberg & Schnell, LLP, New York, NY (Herbert Eisenberg of counsel), for appellant. Sanders Law, PLLC, Garden City, NY (Craig B. Sanders of counsel), for plaintiff-respondent. In a stakeholder’s interpleader action pursuant to CPLR 1006, the defendant Law Office of Richard T. Seymour, PLLC, appeals from (1) a judgment of the Supreme Court, Nassau County (Thomas Feinman, J.), entered December 6, 2017, and (2) an order of the same court entered December 28, 2017. The judgment, upon an order of the same court entered November 15, 2017, denying that defendant’s motion to dismiss the complaint insofar as asserted against it and granting the plaintiff’s unopposed cross motion, inter alia, for leave to pay certain funds into court, among other things, directed the plaintiff to deposit into court certain funds and restrained the defendants from instituting any actions or asserting any claims against the plaintiff related to the funds. The order denied the motion of the defendant Law Office of Richard T. Seymour, PLLC, to dismiss the cross claims of the defendant Hamilton Capital VII, LLC, insofar as asserted against it. ORDERED that the judgment and the order entered December 28, 2017, are affirmed, with one bill of costs to the plaintiff. This interpleader action involves competing claims to legal fees earned in a federal action entitled St. Bernard Parish v. Lafarge N. Am. (see St. Bernard Parish v. Lafarge N. Am., 550 Fed Appx 184 [5th Cir]). The plaintiff, Hurricane Katrina Barge Litigation Joint Venture, LLC, is a New York limited liability company, which deposited the legal fees in a New York bank. The plaintiff commenced this interpleader action pursuant to CPLR 1006 against various parties asserting claims to the legal fees, including the defendant Law Office of Richard T. Seymour, PLLC (hereinafter the defendant). The defendant moved to dismiss the complaint insofar as asserted against it for lack of jurisdiction. The plaintiff cross-moved, inter alia, for leave to pay the legal fees into court, and to discharge it from further liability with respect to the legal fees, and dismiss it from the action. In an order entered November 15, 2017, the Supreme Court denied the defendant’s motion and granted the plaintiff’s unopposed cross motion. Judgment was entered on December 6, 2017, inter alia, directing the plaintiff to pay the legal fees into court, restraining the defendants from instituting any actions or asserting any claims against the plaintiff related to the legal fees, and discharging the plaintiff from the action. In a subsequent order entered December 28, 2017, the court denied the defendant’s separate motion to dismiss the cross claims asserted against it by the defendant Hamilton Capital VII, LLC (hereinafter Hamilton), for lack of jurisdiction. The defendant appeals. Contrary to the defendant’s contention, the Supreme Court, pursuant to CPLR 1006(g), may properly exercise jurisdiction over the defendant’s interest in the legal fees located in New York. Since the legal fees which provide the basis of jurisdiction are the subject of the litigation, there is a “constitutionally adequate connection between the defendant, the State and the action” (Keane v. Kamin, 94 NY2d 263, 265), such that the court’s assertion of jurisdiction is consistent with due process (see Shaffer v. Heitner, 433 US 186, 206-212; International Shoe Co. v. Washington, 326 US 310, 316). Accordingly, we agree with the Supreme Court’s determinations denying the defendant’s separate motions to dismiss the complaint and Hamilton’s cross claims insofar as asserted against it for lack of jurisdiction. CHAMBERS, J.P., HINDS-RADIX, LASALLE and WOOTEN, JJ., concur.
