Ortiz v. Medina

Appellate Division of the Supreme Court of New York

Ortiz v. Medina

273 A.D.2d 9, 709 N.Y.S.2d 401, 2000 N.Y. App. Div. LEXIS 6099

Appellate Division of the Supreme Court of the State of New York·Decided June 1, 2000·Published

Opinion

Order, Supreme Court, New York [10] County (Richard Lowe, III, J.), entered December 7, 1999, which denied defendants’ motion to vacate a default judgment, unanimously affirmed, with costs.

Defendants’ argument that the court lacked personal jurisdiction over them cannot be used as a means of vacating the default judgment resulting from defendants’ failure to serve an answer or appear. Defendants, who were well aware of the action against them, failed to challenge the court’s jurisdiction properly, by raising their objection either by motion or in an answer (see, CPLR 320, 3211 [a]). Were we to consider defendants’ jurisdictional argument, we would find it to be without merit, since the record demonstrates that both defendants were properly served.

Although defendants, in support of their motion for vacatur, advanced a meritorious defense, they failed to provide a valid excuse for their default and, accordingly, vacatur was properly denied (see, Ocasio v City of New York, 186 AD2d 520; Maese v Arkin, 187 AD2d 400). Concur — Williams, J. P., Tom, Mazzarelli, Rubin and Friedman, JJ.

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Order, Supreme Court, New York [10] County (Richard Lowe, III, J.), entered December 7, 1999, which denied defendants’ motion to vacate a default judgment, unanimously affirmed, with costs.

Defendants’ argument that the court lacked personal jurisdiction over them cannot be used as a means of vacating the default judgment resulting from defendants’ failure to serve an answer or appear. Defendants, who were well aware of the action against them, failed to challenge the court’s jurisdiction properly, by raising their objection either by motion or in an answer (see, CPLR 320, 3211 [a]). Were we to consider defendants’ jurisdictional argument, we would find it to be without merit, since the record demonstrates that both defendants were properly served.

Although defendants, in support of their motion for vacatur, advanced a meritorious defense, they failed to provide a valid excuse for their default and, accordingly, vacatur was properly denied (see, Ocasio v City of New York, 186 AD2d 520; Maese v Arkin, 187 AD2d 400). Concur — Williams, J. P., Tom, Mazzarelli, Rubin and Friedman, JJ.

Ortiz v. Medina, 273 A.D.2d 9, 709 N.Y.S.2d 401, 2000 N.Y. App. Div. LEXIS 6099 (N.Y. Ct. App. 2000).

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Opinion

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