Double Diamond Equity, Inc. v. Valerie

Appellate Division of the Supreme Court of New York

Double Diamond Equity, Inc. v. Valerie

23 A.D.3d 1103, 807 N.Y.S.2d 762

Appellate Division of the Supreme Court of the State of New York·Decided November 10, 2005·Published·Cited by 4 cases

Opinion

Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered October 20, 2004. The order denied defendant’s motion to vacate a default judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Upon defendant’s default, Supreme Court granted plaintiff’s motion for summary judgment in lieu of complaint (see CPLR 3213), pursuant to which plaintiff sought the amount due under a promissory note and guaranty executed by defendant. Although defendant properly moved to vacate the judgment granting plaintiffs motion rather than taking an ap[1104] peal from it (see CPLR 5015 [a] [1]; Ross Bicycles v Citibank, 134 AD2d 181, 182 [1987]; see also Marquise Collection v M.A.S. Textiles Corp., 239 AD2d 470 [1997]), we nevertheless conclude that he failed to establish his entitlement to that relief. “A court may vacate a default where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense” (Matter of Macias v Motor Veh. Acc. Indem. Corp., 10 AD3d 396, 397 [2004]). Defendant’s own submissions establish that the default was intentional and thus not excusable (see Eretz Funding v Shalosh Assoc., 266 AD2d 184, 185 [1999]; P & K Marble v Pearce, 168 AD2d 439 [1990]), and defendant failed to establish the existence of a meritorious defense (see Gittleson v Dempster, 148 AD2d 578, 579 [1989], lv denied 74 NY2d 603 [1989]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Gorski and Smith, JJ.

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Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered October 20, 2004. The order denied defendant’s motion to vacate a default judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Upon defendant’s default, Supreme Court granted plaintiff’s motion for summary judgment in lieu of complaint (see CPLR 3213), pursuant to which plaintiff sought the amount due under a promissory note and guaranty executed by defendant. Although defendant properly moved to vacate the judgment granting plaintiffs motion rather than taking an ap[1104] peal from it (see CPLR 5015 [a] [1]; Ross Bicycles v Citibank, 134 AD2d 181, 182 [1987]; see also Marquise Collection v M.A.S. Textiles Corp., 239 AD2d 470 [1997]), we nevertheless conclude that he failed to establish his entitlement to that relief. “A court may vacate a default where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense” (Matter of Macias v Motor Veh. Acc. Indem. Corp., 10 AD3d 396, 397 [2004]). Defendant’s own submissions establish that the default was intentional and thus not excusable (see Eretz Funding v Shalosh Assoc., 266 AD2d 184, 185 [1999]; P & K Marble v Pearce, 168 AD2d 439 [1990]), and defendant failed to establish the existence of a meritorious defense (see Gittleson v Dempster, 148 AD2d 578, 579 [1989], lv denied 74 NY2d 603 [1989]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Gorski and Smith, JJ.

Double Diamond Equity, Inc. v. Valerie, 23 A.D.3d 1103, 807 N.Y.S.2d 762 (N.Y. Ct. App. 2005).

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