Lewis v. 470-86 Tre Realty Corp.

277 A.D.2d 22, 716 N.Y.S.2d 293, 2000 N.Y. App. Div. LEXIS 11036

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2000
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered on or about June 18, 1998, which denied defendant-appellant’s motion to vacate its default in answering the complaint, unanimously affirmed, with costs. Appeal from judgment, same court and Justice, entered on or about August 6, 1998, foreclosing on the subject premises, and order, same court and Justice, entered November 8, 1996, which denied defendant’s motion to dismiss the complaint for failure to prosecute, unanimously dismissed, without costs.

In view of defendant’s default in answering, the only appeal-able paper is the order denying its motion to vacate the default. Assuming such relief is not precluded as a matter of law by defendant’s three-year delay in making its motion therefor measured from the time it received notice of the order appointing a Referee to compute (see, CPLR 5015 [a] [1]; Nahmani v Town of Ramapo, 262 AD2d 291), the denial of relief was a proper exercise of discretion absent any explanation for such delay. Concur — Williams, J. P., Mazzarelli, Ellerin, Wallach and Saxe, JJ.