On Kee Foods, Inc. v. 7 Eldridge LLC

80 A.D.3d 462, 914 N.Y.S.2d 153

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 2011
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard F. Braun, J.), entered October 8, 2009, which, in an action alleging breach of commercial leases, denied defendant’s motion to vacate a default judgment entered against it, unanimously affirmed, with costs.

Defendant failed to provide a reasonable excuse for its default in appearing at an inquest and did not proffer a meritorious defense on the issue of damages (see e.g. Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]). The contention that it did not receive any notice of the inquest is belied by the evidence. Plaintiffs’ counsel informed defense counsel of the conference date, had faxed over a letter confirming the date, and called and left messages with defense counsel’s office on the day of the conference. Regarding its meritorious defense, defendant failed to submit evidence or raise arguments concerning the issue of damages.

We also note that the motion was properly denied as untimely. The record shows that the judgment with notice of entry was served on December 22, 2007, and the subject motion was not brought until August 2009 (see CPLR 5015 [a] [1]). Concur— Andrias, J.P., Friedman, Catterson, Renwick and DeGrasse, JJ.