Pergolis-Schwartz, Inc. v. Biberaj

280 A.D.2d 323, 720 N.Y.S.2d 144, 2001 N.Y. App. Div. LEXIS 1336

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about February 9, 2000, which, in a turnover proceeding by petitioner judgment creditor against its own judgment debtors (Associates), its judgment debtors’ judgment debtor (175 E. 74th Corp.) and the bank in which 175 E. 74th Corp. has a restrained account, denied Associates’ motion to vacate the default judgment entered April 5, 1999 upon its failure to appear in opposition to the petition, unanimously affirmed, without costs.

Associates’ attorney’s representation that the reason Associates failed to appear in opposition to the petition was because he suffered a medical emergency the day before the return date does not explain why it then took Associates 11 months to move to vacate their default. After the default, petitioner sought, and, over Associates’ vigorous opposition, was granted leave to intervene as a party plaintiff in Associates’ action against 175 East, which was already on appeal (Morgan Barrington Assocs. v 175 E. 74th Corp. , 266 AD2d 106), and it was not until after Associates’ judgment against 175 East was affirmed on that appeal that Associates finally moved to vacate its default herein. Such intentional, sustained inaction, whatever its tactical justification, is inexcusable (Wilf v Halpern, 234 AD2d 154). Nor does Associates demonstrate a meritorious defense. Concur — Sullivan, P. J., Rosenberger, Mazzarelli, Lerner and Buckley, JJ.