United States Life Insurance v. John J. Burke Associates

162 A.D.2d 112, 556 N.Y.S.2d 65, 1990 N.Y. App. Div. LEXIS 6799

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered on June 26, 1989, which denied defendants’ motion, pursuant to CPLR 2221, 5015, 317 and 3213, for renewal of a motion to vacate a default on a motion for summary judgment on an instrument for the payment of money only, is unanimously affirmed, with costs.

Renewal was properly denied, since it was based on facts that were or should have been known to the defendants at the time of their original motion to vacate, and there was no explanation as to why those facts were not asserted on the first motion (Matter of Beiny, 132 AD2d 190, 209-210, Iv dismissed 71 NY2d 994). It was not an abuse of discretion for the IAS court to decline to excuse deficiency.

Similarly, it was not an abuse of the IAS court’s discretion to find that neither a reasonable excuse for the default nor a meritorious defense was demonstrated (Picotte Realty v Aragona, 87 AD2d 955, 956). Concur—Murphy, P. J., Rosenberger, Asch, Smith and Rubin, JJ.