Small v. Applebaum

79 A.D.2d 572, 434 N.Y.S.2d 24, 1980 N.Y. App. Div. LEXIS 13895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1980
• Status: Published

Opinion

Order, Supreme Court, New York County, entered June 20, 1980, which granted defendant’s motion to vacate the default judgment entered in plaintiff’s favor on May 8, 1980, unanimously reversed, on the law, with costs and with disbursements, and the motion is denied. In seeking to vacate the default judgment in this action to recover a broker’s fee, it was incumbent upon defendant to show that the default was excusable and that there is a meritorious defense (see 5 Weinstein-KornMiller, NY Civ Prac, par 5015.04). In the absence of a showing of both excusable default and a meritorious defense, relief under CPLR 5015 (subd [a], par 1) is unavailable (see Montmarte, Inc. v Salvation Army, 20 AD2d 536). Study of the record herein discloses that no sufficient showing of a meritorious defense was made. Documentary evidence (the brokerage agreement) reveals that defendant signed in an individual capacity. Concur—Ross, J. P., Lupiano, Silverman, Yesawich and Carro, JJ.