New Century Fin. Servs., Inc. v. Yilmaz

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 13, 2019
• Docket: 2019 NYSlipOp 50981(U)
• Status: Published

Opinion

New Century Financial Services, Inc., Respondent,

against

Selma Yilmaz, Appellant.

Selma Yilmaz, appellant pro se. Pressler, Felt & Warshaw, LLP (Craig S. Stiller of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated January 31, 2018. The order denied defendant's motion to vacate a judgment of that court entered June 10, 2014 upon defendant's failure to appear at a calendar call, and to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

In this action to recover upon a credit card debt, defendant failed to appear at a calendar call, and a default judgment was entered against her on June 10, 2014 (see Uniform Rules for Dist Cts [22 NYCRR] § 212.14 [b] [1]). Three years later, defendant moved to vacate the default judgment and to dismiss the complaint. Defendant appeals from the order denying her motion.

To be relieved of her default, defendant had to demonstrate both a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hawthorne Gardens Owners Corp. v Jacobs, 47 Misc 3d 148[A], 2015 NY Slip Op 50822[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). The determination of what constitutes a reasonable excuse sufficient to open a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). In this case, we find that the District Court did not improvidently exercise its discretion in finding that defendant had failed to demonstrate a reasonable excuse for her default.

Accordingly, the order is affirmed.

ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 13, 2019