Koutrakos v. Vernon Sutton Realty

40 A.D.3d 355, 835 N.Y.S.2d 192

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard F. Braun, J.), entered January 4, 2006, which denied the corporate defendant’s motion to vacate an order providing for an assessment of damages, unanimously affirmed, without costs.

The motion court providently exercised its discretion in declining to vacate the corporate defendant’s default on plaintiffs motion for a default judgment since said defendant failed to set forth either a reasonable excuse or a meritorious defense (see Estrella v Herrera, 23 AD3d 320 [2005]). Although it is undisputed that the motion was served on defendant at several addresses, which included those to which the notice of entry of the order on the defaulted motion had been sent, the corporate defendant failed to deny receipt of the motion papers or offer any excuse for not appearing in opposition to the motion. This was despite the court’s having already advised said defendant of such deficiency in explaining why it had refused to sign the prior order to show cause seeking the identical relief. We further note that the purported meritorious defense was also insufficient as both conclusory (Facsimile Communications Indus., Inc. v NYU Hosp. Ctr., 28 AD3d 391 [2006]), and not based on personal knowledge (Figueroa v Luna, 281 AD2d 204 [2001]). In view of the foregoing, it is unnecessary to address whether vacatur should have been granted notwithstanding the corporate defendant’s failure to maintain a current address on file with the Secretary of State (but compare KPG Inc. v Salinas Group Ltd., 11 AD3d 338 [2004] with Raiola v 1944 Holding, 1 AD3d 296 [2003]; and see Crespo v A.D.A. Mgt., 292 AD2d 5, 9-10 [2002]). Concur—Tom, J.P, Friedman, Sullivan, Buckley and Kavanagh, JJ.