NYCTL 1998-2 Trust v. Levin

13 A.D.3d 595, 786 N.Y.S.2d 351, 2004 N.Y. App. Div. LEXIS 15666

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2004
• Status: Published

Opinion

In an action to foreclose a tax lien, the defendant Isaac Levin appeals from (1) an order of the Supreme Court, Queens County (Dollard, J.), dated May 23, 2003, which granted, without opposition, the plaintiffs motion to extend a notice of pendency filed with respect to the demised premises, and (2) an order of the same court dated October 2, 2003, which denied his motion to vacate the order dated May 23, 2003.

Ordered that the appeal from the order dated May 23, 2003, is dismissed, as no appeal lies from an order entered on the default of the appealing party (see CPLR 5511); and it is further,

Ordered that the order dated October 2, 2003 is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

A party seeking to obtain relief from an order entered on his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a meritorious defense to the motion (see CPLR 5015 [a] [1]; Vlachos v Saueracker, 10 AD3d 683 [2004]; Juarbe v City of New York, 303 AD2d 462 [2003]). Here, the appellant failed to demonstrate a meritorious defense to the motion, as the plaintiff had the right to file a successive notice of pendency in this tax lien foreclosure action (see NYCTL 1997-1 Trust v Oneg Shabbos, Inc., 5 AD3d 568 [2004]; see Bankers Trust Co. of Cal. v Lifson, 5 AD3d 710 [2004]; Horowitz v Griggs, 2 AD3d 404, 406 [2003]; Campbell v Smith, 309 AD2d 581 [2003]; Wasserman v Harriman, 234 AD2d 596 [1996]; Slutsky v Blooming Grove Inn, 147 AD2d 208, 212-213 [1989]). Accordingly, the motion to vacate the default was correctly denied. S. Miller, J.P., Krausman, Mastro and Fisher, JJ., concur.