Britvan v. Sutton & Edwards, Inc.

226 A.D.2d 491, 641 N.Y.S.2d 109, 1996 N.Y. App. Div. LEXIS 4344

Opinion

—In an action to recover a real estate broker’s commission, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roncallo, J.), dated October 7,1994, which granted the defendant Herbert Agin’s motion to vacate a judgment of the same court, dated March 17, 1994, entered upon his default in answering the complaint and denied the plaintiff’s cross motion, inter alia, to sever the action against the defendant Herbert Agin.

Ordered that the order is affirmed, with costs.

When determining the plaintiff’s application for leave to enter a default judgment against the defendant Herbert Agin and Agin’s subsequent motion to reargue the plaintiff’s application, the Supreme Court did not consider whether Agin’s delay in answering was excusable and whether Agin had a meritorious defense to this action because, on both occasions, Agin failed to submit an affidavit of merit containing a justifiable excuse and a meritorious defense. We, therefore, find no merit to the plaintiff’s contention that Agin should not have been allowed to relitigate those issues on a motion pursuant to CPLR 5015 (a) (1) to vacate his default (see, Picinic v Seatrain Lines, 117 AD2d 504; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5015:6, at 467).

In light of our determination, we need not address the plaintiff’s remaining contention. Sullivan, J. P., Copertino, Pizzuto and Florio, JJ., concur.