Opinion
October 15, 1992
Appeal from the Supreme Court, New York County (Robert E. White, J.).
The motion to vacate the default judgment was based solely on the ground that the decedent had never been served with process. As defendant concedes on appeal, that ground was withdrawn in the stipulation entered into after the decedent's death. The ground defendant now raises instead — the decedent's personal illness and a death in her family — may not be raised for the first time on appeal (Nelson v Times Sq. Stores Corp., 110 A.D.2d 691, appeal dismissed 67 N.Y.2d 645), and, in any event, is unpersuasive in the face of evidence that the decedent was served with the process before she fell ill, and was, in fact, experienced in matters of real estate.
Concur — Carro, J.P., Milonas, Rosenberger and Asch, JJ.