Lopez v. 724 Management, LLC

Appellate Division of the Supreme Court of New York

Lopez v. 724 Management, LLC

72 A.D.3d 453, 897 N.Y.S.2d 626

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 6, 2010

StatusPublished

Cited by1 cases

This text of 72 A.D.3d 453 (Lopez v. 724 Management, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lopez v. 724 Management, LLC, 72 A.D.3d 453, 897 N.Y.S.2d 626 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about February 26, 2009, which, inter alia, granted plaintiff’s motion to reargue, and, upon reargument, vacated a prior order which had granted defendant’s motion to vacate its default and denied the motion, unanimously affirmed, with costs.

Defendant’s failure to argue, either in its motion to vacate the default or in opposition to plaintiffs motion to reargue, that plaintiff failed to meet the statutory requirements of CPLR 3215 (f), renders the argument unpreserved, and we decline to review it in the interest of justice (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 829-830 [2008]). Were we to review it, we would find that plaintiff indeed met the statutory requirements.

The court providently exercised its discretion in denying defendant’s motion to vacate its default, as defendant failed to offer a reasonable excuse for failing to appear (see CPLR 5015 [a]). Defendant’s excuse that it had moved and was no longer conducting business at the address where process was served, was belied by defendant’s own documents tending to show the contrary (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9-10 [2002]; see also Cadle Co. v Nunez, 43 AD3d 653, 656 [2007]).

[454]*454We have considered defendant’s remaining contentions, including that vacating the default is warranted under CPLR 317, and find them unavailing. Concur—Tom, P.J., Mazzarelli, Nardelli, Acosta and Renwick, JJ.

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Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about February 26, 2009, which, inter alia, granted plaintiff’s motion to reargue, and, upon reargument, vacated a prior order which had granted defendant’s motion to vacate its default and denied the motion, unanimously affirmed, with costs.

Defendant’s failure to argue, either in its motion to vacate the default or in opposition to plaintiffs motion to reargue, that plaintiff failed to meet the statutory requirements of CPLR 3215 (f), renders the argument unpreserved, and we decline to review it in the interest of justice (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 829-830 [2008]). Were we to review it, we would find that plaintiff indeed met the statutory requirements.

The court providently exercised its discretion in denying defendant’s motion to vacate its default, as defendant failed to offer a reasonable excuse for failing to appear (see CPLR 5015 [a]). Defendant’s excuse that it had moved and was no longer conducting business at the address where process was served, was belied by defendant’s own documents tending to show the contrary (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9-10 [2002]; see also Cadle Co. v Nunez, 43 AD3d 653, 656 [2007]).

[454]*454We have considered defendant’s remaining contentions, including that vacating the default is warranted under CPLR 317, and find them unavailing. Concur—Tom, P.J., Mazzarelli, Nardelli, Acosta and Renwick, JJ.

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72 A.D.3d 453, 897 N.Y.S.2d 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-724-management-llc-nyappdiv-2010.

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