114 West 26TH Street Associates Lp v. Fortunak

• Decision Date: 18 October 2005
• Docket Number: 6791N.
• Parties: 114 WEST 26TH STREET ASSOCIATES LP, Respondent, v. GEORGINE FORTUNAK et al., Appellants.
• Court: New York Supreme Court — Appellate Division

22 A.D.3d 346

801 N.Y.S.2d 895

2005 NY Slip Op 07623

114 WEST 26TH STREET ASSOCIATES LP, Respondent, v. GEORGINE FORTUNAK et al., Appellants.

6791N.

Appellate Division of the Supreme Court of the State of New York, First Department.

October 18, 2005.

Order, Supreme Court, New York County (Louis B. York, J.), entered May 19, 2004, which granted plaintiff's motion for entry of a default judgment, denied defendants' cross motion for an extension of time to answer the complaint, and referred the matter to a special referee to hear and determine, unanimously affirmed, with costs.

The IAS court properly exercised its discretion in granting the motion of plaintiff landlord for a default judgment against defendant guarantors based on its finding that defendants failed to demonstrate a justifiable excuse for their delay in answering the complaint seeking to enforce defendants' guarantee of the tenant's lease obligations, and that defendants failed to establish a meritorious defense. Their defenses had been previously rejected by the Civil Court, New York County in 114 W. 26th St. Assoc., L.P. v. Metropolis Fencing Sports Ctr., LLC (Index No. 080711/03), where it was determined that the tenant, with whom defendant guarantors are in privity, and of whom they are principals, lacked any defense to the landlord's nonpayment petition (CPLR 3012 [d]).

Concur — Marlow, J.P., Ellerin, Williams, Catterson and McGuire, JJ.