2261 Palmer Ave. Corp. v. Malick

• Citation: 2012 N.Y. Slip Op. 00506,91 A.D.3d 853,936 N.Y.S.2d 672
• Parties: 2261 PALMER AVENUE CORPORATION, respondent, v. Lynn MALICK, appellant.
• Decision Date: 24 January 2012
• Court: New York Supreme Court Appellate Division

2012 N.Y. Slip Op. 00506
91 A.D.3d 853
936 N.Y.S.2d 672

2261 PALMER AVENUE CORPORATION, respondent,
v.
Lynn MALICK, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 24, 2012.

[936 N.Y.S.2d 673]

Michel Costello, Rosedale, N.Y., for appellant.

Goldenberg & Selker, LLP, White Plains, N.Y. (Diane E. Selker of counsel), for respondent.

ANITA R. FLORIO, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action for ejectment and to recover damages for use and occupancy, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered February 22, 2011, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment, and denied that branch of her cross motion which was to vacate her default in appearing or answering the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In order to vacate her default in appearing or answering the complaint, the defendant was required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action ( see CPLR 5015[a][1]; Bank of Am. v. Faracco, 89 A.D.3d 879, 932 N.Y.S.2d 706; Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d 784, 932 N.Y.S.2d 378; see also Swensen v. MV Transp., Inc., 89 A.D.3d 924, 933 N.Y.S.2d 96). Even if the defendant demonstrated a reasonable excuse for her default, our review of the record establishes that she failed to demonstrate a potentially meritorious defense to the action. The papers submitted in support of her cross motion, inter alia, to vacate her default in appearing or answering the complaint were replete with self-serving, vague, and unsubstantiated denials and unsupported legal conclusions as to whether a potentially meritorious defense to the action existed, and were thus an insufficient basis for vacating her default ( see Thapt v. Lutheran Med. Ctr., 89 A.D.3d 837, 932 N.Y.S.2d 346; Garal Wholesalers, Ltd. v. Raven Brands, Inc., 82 A.D.3d 1041, 919 N.Y.S.2d 358).

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment, and properly denied that branch of the defendant's cross motion which was to vacate her default in appearing or answering the complaint.