Citicorp Vendor Finance, Inc. v. Island Garden Basketball, Inc.

27 A.D.3d 608, 810 N.Y.S.2d 673

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2006
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant Michele Cochrane, sued herein as Michelle Cochrane, appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated July 1, 2005, which denied her motion pursuant to CPLR 5015 (a) (3), in effect, to vacate so much of an order and judgment of the same court entered August 20, 2003, as granted those branches of the plaintiffs motion which were for summary judgment on the third and fourth causes of action insofar as asserted against her, upon her failure to oppose the motion, and was in favor of the plaintiff and against her in the principal sum of $67,469.04.

Ordered that the order is affirmed, with costs.

The appellant unreasonably delayed making her motion pursuant to CPLR 5015 (a) (3), in effect, to vacate stated portions of the order and judgment (see Richardson v Richardson, 309 AD2d 795, 796 [2003]; Green Point Sav. Bank v Arnold, 260 AD2d 543 [1999]). Moreover, the appellant failed to establish that the plaintiff procured the order and judgment by fraud, misrepresentation, or other misconduct (see CPLR 5015 [a] [3]; Blumes v Madar, 21 AD3d 518, 520 [2005]; Badgett v Badgett, 2 AD3d 379 [2003]; Feldstein v Rounick, 295 AD2d 398, 399 [2002]; Caiola v Allcity Ins. Co., 257 AD2d 586, 588 [1999]; cf. Oppenheimer v Westcott, 47 NY2d 595, 604 [1979]). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant’s motion. Miller, J.P., Crane, Krausman and Rivera, JJ., concur.