Podolsky v. Podolsky

145 A.D.2d 611

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1988
• Status: Published

Opinions

— In an action, inter alia, for a judgment declaring ownership interests in certain income-producing properties, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaccaro, J.), dated June 12, 1987, which, inter alla, denied his motion to vacate a default judgment entered against him upon his failure to timely serve a reply to the counterclaims asserted in the amended answer of the defendants Abraham and Linda Podolsky.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case, we agree with the Supreme Court that the interests of justice do not require vacatur of the default judgment against the plaintiff.

Although the plaintiff repeatedly asserted before the Supreme Court that he had timely effected service of his reply to the amended answer in compliance with a court order requiring that service be effected on or before April 22, 1985, it was established at a hearing held before a Referee that, in fact, service had not been timely. The plaintiff now seeks for the first time on appeal, to excuse his default pursuant to CPLR 2005 on the ground of law office failure. The claim of law office failure amounts to a concession that service was untimely and in violation of the court order. In any event, the plaintiff’s default cannot be excused on the grounds of law office failure, inasmuch as he has completely failed to demonstrate any reason for the delay.

Nor has the plaintiff demonstrated a meritorious defense to the counterclaims in question. From the commencement of this action in 1984 through a second hearing before a Referee in October 1986, the plaintiff had steadfastly denied that the defendant Abraham Podolsky, his son, who claims a 50% interest with the plaintiff in certain properties, had any interest whatsoever in the properties in question. In fact, the untimely reply to the amended counterclaims consists solely of denials of Abraham Podolsky’s alleged interests. Similarly, the plaintiff’s first affidavit of merit in support of his motion to vacate the default judgment only contained general denials. However, following a second hearing held in October 1986 on the issue of whether the plaintiff had a meritorious defense to the counterclaims, the plaintiff submitted additional affidavits and papers to the court, including his own affidavit and those of a number of his other children, as well as a number of partnerships tax returns, which revealed that the defendant Abraham Podolsky had at least a 20% interest in some of the properties in question. As this later submission totally contradicts all of the plaintiff’s earlier verified pleadings, which were apparently untrue when verified and offered to the court, it cannot be said that the court abused its discretion in determining that the plaintiff failed to establish a meritorious defense to the counterclaims.

Under these circumstances, we decline to exercise our discretion to vacate the default in the interests of justice. Kunzeman, Weinstein and Kooper, JJ., concur.