Tolve v. Neri

208 A.D.2d 753, 618 N.Y.S.2d 547, 1994 N.Y. App. Div. LEXIS 9881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1994
• Status: Published

Opinion

In a proceeding pursuant to CPLR 5225 and 5227 to require Theresa Neri to pay $55,539.99 to the petitioner, Joe Tolve, a judgment creditor of Sondro Neri, Theresa Neri appeals from a judgment of the Supreme Court, Westchester County (Ruskin, J.), entered January 14, 1993, which, upon an order of the Supreme Court, Westchester County (Ruskin, J.), dated January 13, 1993, denying the appellant’s motion to vacate a default in opposing the petition, was in favor of the petitioner and against the respondent Theresa Neri in the sum of $61,787.23. The notice of appeal from the order dated January 13, 1993, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

We find that the Supreme Court did not improvidently exercise its discretion in refusing to vacate the default judgment entered against the appellant. The appellant failed to establish both a reasonable excuse and a meritorious defense in attempting to vacate the default judgment (see, Putney v Pearlman, 203 AD2d 333; Fennell v Mason, 204 AD2d 599; Schiavetta v McKeon, 190 AD2d 724; De Vito v Marine Midland Bank, 100 AD2d 530, 531).

The appellant contends that the Supreme Court should have modified the judgment to insure that it could only be executed against her in her capacity as executrix for her husband’s estate and not individually. We find that no clarification is necessary because the judgment is clearly only based upon the appellant’s status as executrix for the estate.

We have reviewed the appellant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.