Blitshteyn v. Mera

Appellate Division of the Supreme Court of New York

Blitshteyn v. Mera

151 A.D.2d 536, 543 N.Y.S.2d 914, 1989 N.Y. App. Div. LEXIS 7944

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 12, 1989

StatusPublished

This text of 151 A.D.2d 536 (Blitshteyn v. Mera) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blitshteyn v. Mera, 151 A.D.2d 536, 543 N.Y.S.2d 914, 1989 N.Y. App. Div. LEXIS 7944 (N.Y. Ct. App. 1989).

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Opinion

In an action for specific performance of a contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated February 17, 1988, which denied their motion to vacate a default judgment of the same court, dated January 22, 1984, upon their default in appearing on the scheduled trial date.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly exercised its discretion in denying the defendants’ motion to vacate the default judgment since neither the defenses asserted nor the counterclaims were shown to be meritorious (see, Perellie v Crimson’s Rest., 108 AD2d 903; Arred Enters. Corp. v Indemnity Ins. Co., 108 AD2d 624). Specifically, the defense of the plaintiffs’ failure to satisfy the mortgage contingency clause is both factually and legally baseless (see, Lane v Penner, 150 AD2d 643), and the claimed Statute of Frauds violation (General Obligations Law § 5-703 [2]) was untimely asserted and, hence, was waived (see, Marcoux v Marcoux, 123 AD2d 844; Barnum v Frickey, 115 AD2d 977). Mangano, J. P., Bracken, Kunzeman and Eiber, JJ., concur.

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In an action for specific performance of a contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated February 17, 1988, which denied their motion to vacate a default judgment of the same court, dated January 22, 1984, upon their default in appearing on the scheduled trial date.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly exercised its discretion in denying the defendants’ motion to vacate the default judgment since neither the defenses asserted nor the counterclaims were shown to be meritorious (see, Perellie v Crimson’s Rest., 108 AD2d 903; Arred Enters. Corp. v Indemnity Ins. Co., 108 AD2d 624). Specifically, the defense of the plaintiffs’ failure to satisfy the mortgage contingency clause is both factually and legally baseless (see, Lane v Penner, 150 AD2d 643), and the claimed Statute of Frauds violation (General Obligations Law § 5-703 [2]) was untimely asserted and, hence, was waived (see, Marcoux v Marcoux, 123 AD2d 844; Barnum v Frickey, 115 AD2d 977). Mangano, J. P., Bracken, Kunzeman and Eiber, JJ., concur.

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Bluebook (online)

151 A.D.2d 536, 543 N.Y.S.2d 914, 1989 N.Y. App. Div. LEXIS 7944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blitshteyn-v-mera-nyappdiv-1989.

Opinion

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