Bergen v. 791 Park Avenue Corp.

162 A.D.2d 330, 570 N.Y.S.2d 940, 1990 N.Y. App. Div. LEXIS 7729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about July 7, 1989, which granted defendant’s motion to vacate a default judgment entered against it on January 12, 1989, unanimously affirmed, with costs.

Plaintiff conceded below that defendant’s default was inadvertent and excusable. The sole issue remaining was whether defendant had a meritorious defense. Plaintiff’s argument below and on appeal is specifically addressed to the merits of the lawsuit, and invites the court to conduct an evaluation thereof. However, such an inquiry is premature at this juncture. It is not necessary for defendant to prove its defense, but only to set forth facts sufficient to make out a prima facie showing of a meritorious defense. (Tat Sang Kwong v Budge-Wood Laundry Serv., 97 AD2d 691, 692.) The defendant has made such a showing in its assertion that the proprietary lease was validly amended to impose the "flip tax” challenged by plaintiff, prior to the sale of her apartment. Concur— Murphy, P. J., Kassal, Ellerin, Smith and Rubin, JJ.