Galleria Associates v. Stevens

208 A.D.2d 590, 618 N.Y.S.2d 237, 1994 N.Y. App. Div. LEXIS 9581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 1994
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants Vlad Stevens and Steve Stevens, Jr. appeal from (1) a decision of the Supreme Court, Westchester County (Wood, J.), dated May 6, 1993, which found that the plaintiff was entitled to a writ of assistance, and that there was no basis to vacate a default judgment entered against the defendants and (2) an order of the same court dated May 26, 1993, entered upon the decision, which granted the plaintiff’s motion for a writ of assistance and denied their cross motion to, inter alia, vacate a default judgment.

Ordered that the appeal from the decision dated May 6, 1993 is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order dated May 26, 1993 is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

We find that the Supreme Court did not improvidently exercise its discretion in denying the appellants’ motion to vacate the default judgment. The motion was untimely and the appellants failed to establish both a reasonable excuse for their default and the existence of a meritorious defense (see, Putney v Pearlman, 203 AD2d 333; Fennell v Mason, 204 AD2d 599; Schiavetta v McKeon, 190 AD2d 724; De Vito v Marine Midland Bank, 100 AD2d 530; Di Gangi v Schiffgens, 90 AD2d 805).

We have examined the appellants’ remaining contentions and find them to be without merit. Sullivan, J. P., Rosenblatt, Altman, Hart and Friedmann, JJ., concur.