Centurion Taxi, Inc. v. Beizem

247 A.D.2d 502, 668 N.Y.S.2d 480, 1998 N.Y. App. Div. LEXIS 1477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1998
• Status: Published

Opinion

In an action to recover on a promissory note, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Vaccaro, J.), dated October 10, 1996, which granted the defendant’s motion to vacate a judgment of the same court entered June 1, 1995, upon his confession of judgment, and (2) an order of the same court (Demarest, J.), dated May 14, 1997, which denied its motion, denominated as one for renewal and reargument but which was, in effect, a motion for leave to renew.

Ordered that the order dated May 14, 1997, is reversed, renewal is granted, and, upon renewal, the motion to vacate the judgment entered upon the defendant’s confession of judgment is dismissed, the judgment is reinstated, and the order dated October 10, 1996, is vacated; and it is further,

Ordered that the appeal from the order dated October 10, 1996, is dismissed, in light of our determination on the appeal from the order dated May 14, 1997; and it is further,

Ordered that the appellant is awarded one bill of costs.

Under the circumstances here, the judgment debtor should have attacked the judgment by confession by commencing a plenary action (see, Estate of Zelman v Scibelli, 157 AD2d 705; Affenita v Long Indus., 133 AD2d 727).

Miller, J. P., Ritter, Pizzuto and Altman, JJ., concur.