        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1062
CA 12-02061
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


JUDY MILLS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

RICHARD MILLS, DEFENDANT-APPELLANT.


RICHARD MILLS, ROMULUS, DEFENDANT-APPELLANT PRO SE.


     Appeal from an order of the Supreme Court, Genesee County (Robert
C. Noonan, A.J.), entered October 10, 2012. The order denied the
motion of defendant to vacate a default judgment of divorce.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant appeals from an order denying his motion
to vacate a default judgment of divorce. The default judgment was
entered in 2002 and, in 2011, defendant first applied for poor person
relief in order to file a motion to vacate the default. Upon the
denial of the motion for poor person relief, defendant moved pro se
seeking, among other relief, leave to reargue that motion and, after
the denial of the reargument motion, defendant moved to vacate the
default judgment. Contrary to defendant’s contention, Supreme Court
did not err in denying defendant’s motion to vacate the default.

     Initially, we note that defendant’s contention that the court
erred in denying his application for poor person relief is not
properly before us. Defendant did not file a notice of appeal with
respect to the order that initially denied that application (see CPLR
5513 [a]; Matter of HSBC Bank USA, NA [Makowski], 72 AD3d 1515,
1516-1517; DiSanto v DiSanto, 29 AD3d 935, 935). In addition, in a
subsequent order, the court denied defendant’s motion for leave to
reargue his application for poor person relief, and defendant failed
to file a notice of appeal with respect to that order. Even if he had
filed a notice of appeal, however, it is settled that “[a]n order
denying a motion to reargue is not appealable” (Empire Ins. Co. v Food
City, 167 AD2d 983, 984).

     Defendant’s further contention that the court was required to
appoint a guardian ad litem for him is raised for the first time on
appeal and therefore is not properly before us (see Ciesinski v Town
of Aurora, 202 AD2d 984, 985). We nevertheless review that contention
inasmuch as it involves “[a] question of law appearing on the face of
the record . . . [that] could not have been avoided by the opposing
                                 -2-                          1062
                                                         CA 12-02061

party if brought to that party’s attention in a timely manner” (Oram v
Capone, 206 AD2d 839, 840). We reject defendant’s contention,
however, and conclude that he failed to establish that the court was
required to appoint a guardian ad litem before granting the default
judgment (see generally CPLR 1201, 1203; cf. State of New York v Kama,
267 AD2d 225, 225-226). To the contrary, even assuming, arguendo,
that the evidence submitted by defendant was properly considered by
the court (cf. generally Mohrmann v Lynch-Mohrmann, 24 AD3d 735, 736),
we conclude that the evidence “failed to set forth any professional
medical opinion that [he] may have lacked the mental ability to
adequately protect [his] rights and interests during the relevant time
period” (id.).

     With respect to defendant’s contentions concerning vacatur of the
default judgment, it is well settled that “[t]he determination of
whether . . . to vacate a default . . . is generally left to the sound
discretion of the court” (Ahmad v Aniolowiski, 28 AD3d 692, 692; see
Shouse v Lyons, 265 AD2d 901, 902). Contrary to defendant’s
contention, we conclude that the court properly determined “that
defendant had actual notice of the default judgment as early as [2004,
and unquestionably had notice of it in 2009], thus, [his 2011] motion
to vacate the default judgment pursuant to CPLR 5015 (a) (1)—which
permits vacatur of a judgment on the ground of excusable default
within one year—is . . . untimely” (State of N.Y. Higher Educ. Servs.
Corp. v Sparozic, 35 AD3d 1069, 1070, lv denied 8 NY3d 958).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
