114 West 26th Street Associates LP v. Fortunak

22 A.D.3d 346, 801 N.Y.S.2d 895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Louis B. York, J.), entered May 19, 2004, which granted plaintiffs motion for entry of a default judgment, denied defendants’ cross motion for an extension of time to answer the complaint, and referred the matter to a special referee to hear and determine, unanimously affirmed, with costs.

The IAS court properly exercised its discretion in granting the motion of plaintiff landlord for a default judgment against defendant guarantors based on its finding that defendants failed to demonstrate a justifiable excuse for their delay in answering the complaint seeking to enforce defendants’ guarantee of the tenant’s lease obligations, and that defendants failed to establish a meritorious defense. Their defenses had been previously rejected by the Civil Court, New York County in 114 W. 26th St. Assoc., L.P. v Metropolis Fencing Sports Ctr., LLC (Index No. 080711/03), where it was determined that the tenant, with whom defendant guarantors are in privity, and of whom they are principals, lacked any defense to the landlord’s nonpayment petition (CPLR 3012 [d]). Concur—Marlow, J.P., Ellerin, Williams, Catterson and McGuire, JJ.