Daniels v. Smith

Appellate Division of the Supreme Court of New York

Daniels v. Smith

219 A.D.2d 612, 631 N.Y.S.2d 389, 1995 N.Y. App. Div. LEXIS 9303

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

DecidedSeptember 18, 1995

StatusPublished

This text of 219 A.D.2d 612 (Daniels v. Smith) 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

Daniels v. Smith, 219 A.D.2d 612, 631 N.Y.S.2d 389, 1995 N.Y. App. Div. LEXIS 9303 (N.Y. Ct. App. 1995).

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Opinion

In an action for a judgment declaring a constructive trust in favor of the plaintiff over property located at 211 Brooklyn Avenue in Brooklyn, the plaintiff appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated February 4, 1994, which denied her motion to vacate a prior order of the same court, dated December 13, 1993, dismissing the complaint and granting the defendant’s counterclaim for ejectment, upon the plaintiff’s default in appearing for trial.

Ordered that the order is affirmed, with costs.

The plaintiff has failed to establish a reasonable excuse for her default or a meritorious claim (see, State Farm Ins. Co. v Sheeran, 204 AD2d 617). With regard to the latter, we note that the plaintiff has failed to allege, let alone establish, the existence of a promise, either express or implied, or that a transfer of the subject premises was ever made in reliance on such a promise (see, Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939, 940). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.

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In an action for a judgment declaring a constructive trust in favor of the plaintiff over property located at 211 Brooklyn Avenue in Brooklyn, the plaintiff appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated February 4, 1994, which denied her motion to vacate a prior order of the same court, dated December 13, 1993, dismissing the complaint and granting the defendant’s counterclaim for ejectment, upon the plaintiff’s default in appearing for trial.

Ordered that the order is affirmed, with costs.

The plaintiff has failed to establish a reasonable excuse for her default or a meritorious claim (see, State Farm Ins. Co. v Sheeran, 204 AD2d 617). With regard to the latter, we note that the plaintiff has failed to allege, let alone establish, the existence of a promise, either express or implied, or that a transfer of the subject premises was ever made in reliance on such a promise (see, Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939, 940). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.

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Bluebook (online)

219 A.D.2d 612, 631 N.Y.S.2d 389, 1995 N.Y. App. Div. LEXIS 9303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniels-v-smith-nyappdiv-1995.

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