Marston v. Cole

Appellate Division of the Supreme Court of New York

Marston v. Cole

2017 NY Slip Op 1489, 147 A.D.3d 678, 48 N.Y.S.3d 116

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

DecidedFebruary 28, 2017

Docket3016N 301370/09

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 1489 (Marston v. Cole) 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.

Bluebook

Marston v. Cole, 2017 NY Slip Op 1489, 147 A.D.3d 678, 48 N.Y.S.3d 116 (N.Y. Ct. App. 2017).

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Opinions

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about June 12, 2015, which denied plaintiff Karl Marston’s motion to vacate an order, entered on default, granting defendants Steven Berrin’s motion and David Cole’s cross motion to amend their respective answers to include the affirmative defenses of the statute of limitations and equitable estoppel, and to dismiss the complaint, affirmed, without costs.

The court may grant a motion to vacate a default on grounds of excusable default and a showing of a meritorious defense, if the motion is made within one year after service of the order entered on default, with written notice of its entry (see CPLR 5015 [a] [1]; see also Caba v Rai, 63 AD3d 578, 580 [1st Dept 2009]). Marston did not move to vacate the order entered on default until February 18, 2014, nearly 18 months after he was served with the order and requisite notice. Furthermore, in support of his motion, Marston sought to demonstrate a meritorious defense by making a statement directly contrary to a critical allegation in his complaint. Accordingly, the motion court providently exercised its discretion not to vacate the default (see Greenwich Sav. Bank v JAJ Carpet Mart, 126 AD2d 451, 452-453 [1st Dept 1987]).

Concur — Renwick, Feinman and Gesmer, JJ.

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Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about June 12, 2015, which denied plaintiff Karl Marston’s motion to vacate an order, entered on default, granting defendants Steven Berrin’s motion and David Cole’s cross motion to amend their respective answers to include the affirmative defenses of the statute of limitations and equitable estoppel, and to dismiss the complaint, affirmed, without costs.

The court may grant a motion to vacate a default on grounds of excusable default and a showing of a meritorious defense, if the motion is made within one year after service of the order entered on default, with written notice of its entry (see CPLR 5015 [a] [1]; see also Caba v Rai, 63 AD3d 578, 580 [1st Dept 2009]). Marston did not move to vacate the order entered on default until February 18, 2014, nearly 18 months after he was served with the order and requisite notice. Furthermore, in support of his motion, Marston sought to demonstrate a meritorious defense by making a statement directly contrary to a critical allegation in his complaint. Accordingly, the motion court providently exercised its discretion not to vacate the default (see Greenwich Sav. Bank v JAJ Carpet Mart, 126 AD2d 451, 452-453 [1st Dept 1987]).

Concur — Renwick, Feinman and Gesmer, JJ.

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Bluebook (online)

2017 NY Slip Op 1489, 147 A.D.3d 678, 48 N.Y.S.3d 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marston-v-cole-nyappdiv-2017.

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