Rosendale v. Aramian

269 A.D.2d 209, 703 N.Y.S.2d 108, 2000 N.Y. App. Div. LEXIS 1324

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about June 5, 1998, which denied plaintiffs motion to vacate a default judgment dismissing his complaint, and granted defendants’ respective cross motions for sanctions and costs to the extent of imposing costs on plaintiff and his counsel, and ensuing judgment, same court and Justice, entered August 3, 1998, entitling defendants to recover costs from plaintiff and his counsel, unanimously affirmed, with costs.

Plaintiffs motion to vacate the default judgment entered against him was properly denied since plaintiff failed to present a valid excuse for his failure to move to vacate the default judgment within the one-year time limitation prescribed pursuant to CPLR 5015 (a) (1) (see, Christian v Hasmat Mgt. Corp., 251 AD2d 250; Levine v Berlin, 46 AD2d 902). Indeed, the excuse offered by plaintiff was patently invalid and frivolous in light of his attempt during the year following the default judgment to relitigate in another venue the very matters concluded in the default judgment. Accordingly, the court’s award of costs to defendant constituted a proper exercise of discretion pursuant to 22 NYCRR 130-1.1.

Motion seeking to strike brief and cross motion to impose costs, sanctions and other related relief denied. Concur — Sullivan, J. P., Mazzarelli, Ellerin, Lerner and Friedman, JJ.