Lee v. 215 West 88 Street Holdings, LLC

106 A.D.3d 460, 965 N.Y.S.2d 865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Donna M. Mills, J), entered June 28, 2012, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to vacate their default in not timely serving their answer, and denied plaintiffs cross motion for a default judgment and for injunctive relief, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting defendants’ motion and denying plaintiffs cross motion as to defendants’ default. Defendants’ delay in appearing was brief, the default was not willful, there was no evidence that plaintiff was prejudiced, and defendants demonstrated the existence of a potentially meritorious defense (see D&R Global Selections, S.L. v Bodega Olegario Falcon Piñeiro, 90 AD3d 403 [1st Dept 2011]).

The court also properly denied plaintiffs cross motion for injunctive relief requiring defendants to perform certain work in her apartment. Plaintiff failed to demonstrate that she was likely to succeed on the merits of her claims, that she would suffer irreparable injury in the absence of an injunction, and that a balance of the equities tips in her favor (see generally Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839 [2005]; see also CPLR 6301), or that the granting of the requested relief was essential to maintain the status quo (see Second on Second Café, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 264 [1st Dept 2009]). Concur—Gonzalez, RJ., Tom, Sweeny, Renwick and Richter, JJ. [Prior Case History: 2012 NY Slip Op 31715(17).]