O'Kelly v. Doe

Appellate Terms of the Supreme Court of New York

O'Kelly v. Doe

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 18, 2016

Docket2016 NYSlipOp 50386(U)

StatusPublished

This text of O'Kelly v. Doe (O'Kelly v. Doe) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court 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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O'Kelly v. Doe, (N.Y. Ct. App. 2016).

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Medhat O'Kelly, as Administrator of the Estate of MAGDY O'KELLY, Deceased, Respondent,

against

"John Doe", "JANE DOE", "TONY" SOLER, XYZ CORP. VACANT LOT BLOCK 3474, LOT 6, 1947 Also Known as 1949 BROADWAY BROOKLYN, NEW YORK 11207, "JOHN POE" and "JANE POE"., Occupants, and SILVIO HERRERA, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), dated October 3, 2013. The order denied Silvio Herrera's motion to vacate a default final judgment in a summary proceeding brought pursuant to RPAPL 713 (4).

ORDERED that the order is affirmed, without costs.

Following a tax sale, the subject premises was conveyed to petitioner's decedent by a referee's deed. Thereafter, in 2010, petitioner commenced this summary proceeding pursuant to RPAPL 713 (4) to recover possession of the premises. After occupants failed to appear or answer, a default final judgment awarding possession to petitioner was entered on March 29, 2010, and a warrant of eviction was subsequently executed. In September 2013, Silvio Herrera (appellant) moved to vacate the default final judgment and restore the case to the calendar. By order dated October 3, 2013, the Civil Court denied appellant's motion.

Upon a review of appellant's motion papers, we find that appellant failed to establish that he had standing to file the motion, since he stated that he was the "friend" of the tenant "John Doe." Even assuming, arguendo, that appellant had standing, his conclusory statement that he was "never served with any documents" was insufficient to rebut the process server's affidavit and raise an issue of fact necessitating a traverse hearing (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]). Therefore, appellant failed to establish that he was entitled to vacatur of the default final judgment pursuant to CPLR 5015 (a) (4). Moreover, inasmuch as appellant failed to provide a meritorious defense to the proceeding, he is not entitled to vacatur pursuant to CPLR 5015 (a) (1) (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: March 18, 2016

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Medhat O'Kelly, as Administrator of the Estate of MAGDY O'KELLY, Deceased, Respondent,

against

"John Doe", "JANE DOE", "TONY" SOLER, XYZ CORP. VACANT LOT BLOCK 3474, LOT 6, 1947 Also Known as 1949 BROADWAY BROOKLYN, NEW YORK 11207, "JOHN POE" and "JANE POE"., Occupants, and SILVIO HERRERA, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), dated October 3, 2013. The order denied Silvio Herrera's motion to vacate a default final judgment in a summary proceeding brought pursuant to RPAPL 713 (4).

ORDERED that the order is affirmed, without costs.

Following a tax sale, the subject premises was conveyed to petitioner's decedent by a referee's deed. Thereafter, in 2010, petitioner commenced this summary proceeding pursuant to RPAPL 713 (4) to recover possession of the premises. After occupants failed to appear or answer, a default final judgment awarding possession to petitioner was entered on March 29, 2010, and a warrant of eviction was subsequently executed. In September 2013, Silvio Herrera (appellant) moved to vacate the default final judgment and restore the case to the calendar. By order dated October 3, 2013, the Civil Court denied appellant's motion.

Upon a review of appellant's motion papers, we find that appellant failed to establish that he had standing to file the motion, since he stated that he was the "friend" of the tenant "John Doe." Even assuming, arguendo, that appellant had standing, his conclusory statement that he was "never served with any documents" was insufficient to rebut the process server's affidavit and raise an issue of fact necessitating a traverse hearing (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]). Therefore, appellant failed to establish that he was entitled to vacatur of the default final judgment pursuant to CPLR 5015 (a) (4). Moreover, inasmuch as appellant failed to provide a meritorious defense to the proceeding, he is not entitled to vacatur pursuant to CPLR 5015 (a) (1) (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: March 18, 2016

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O'Kelly v. Doe, Counsel Stack Legal Research, https://law.counselstack.com/opinion/okelly-v-doe-nyappterm-2016.

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