Dougherty v. Salty Dog, Inc.

Appellate Division of the Supreme Court of New York

Dougherty v. Salty Dog, Inc.

131 A.D.2d 628, 516 N.Y.S.2d 713, 1987 N.Y. App. Div. LEXIS 48095

Appellate Division of the Supreme Court of the State of New York·Decided June 15, 1987·Published

Opinion

[629] In an action, inter alia, to recover legal fees, the plaintiff appeals from an order of the Supreme Court, Nassau County (Christ, J.), dated January 30, 1985, which granted a motion of a third-party judgment creditor of the defendant for an order, inter alia, vacating a judgment by confession, dated March 18, 1983, and entered in the office of the County Clerk, Nassau County, in the amount of $74,300 in favor of the plaintiff and against the defendant.

Ordered that the order is affirmed, without costs or disbursements.

Special Term correctly held that the defendant’s affidavit confessing judgment in favor of the plaintiff lacked the requisite factual specificity to satisfy CPLR 3218 (see, e.g., Franco v Zeltser, 111 AD2d 367; Baehre v Rochester Dental Prosthetics, 112 Misc 2d 270). Therefore, the court did not err when it granted the motion to vacate the judgment by confession and the execution issued thereon.

With respect to the question of whether the Sheriff of Nassau County is entitled to poundage, the plaintiff’s contentions on appeal are entirely dependent upon facts dehors the record and the subject was not addressed by Special Term. Accordingly, we decline to consider this issue. Thompson, J. P., Brown, Niehoff and Spatt, JJ., concur.

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[629] In an action, inter alia, to recover legal fees, the plaintiff appeals from an order of the Supreme Court, Nassau County (Christ, J.), dated January 30, 1985, which granted a motion of a third-party judgment creditor of the defendant for an order, inter alia, vacating a judgment by confession, dated March 18, 1983, and entered in the office of the County Clerk, Nassau County, in the amount of $74,300 in favor of the plaintiff and against the defendant.

Ordered that the order is affirmed, without costs or disbursements.

Special Term correctly held that the defendant’s affidavit confessing judgment in favor of the plaintiff lacked the requisite factual specificity to satisfy CPLR 3218 (see, e.g., Franco v Zeltser, 111 AD2d 367; Baehre v Rochester Dental Prosthetics, 112 Misc 2d 270). Therefore, the court did not err when it granted the motion to vacate the judgment by confession and the execution issued thereon.

With respect to the question of whether the Sheriff of Nassau County is entitled to poundage, the plaintiff’s contentions on appeal are entirely dependent upon facts dehors the record and the subject was not addressed by Special Term. Accordingly, we decline to consider this issue. Thompson, J. P., Brown, Niehoff and Spatt, JJ., concur.

Dougherty v. Salty Dog, Inc., 131 A.D.2d 628, 516 N.Y.S.2d 713, 1987 N.Y. App. Div. LEXIS 48095 (N.Y. Ct. App. 1987).

Pincite

131 A.D.2d 628 (Dougherty v. Salty Dog, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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