Klishwick v. Popovicki
| Decision Date | 21 September 1992 |
| Citation | 587 N.Y.S.2d 955,186 A.D.2d 173 |
| Parties | Mary KLISHWICK, et al., Respondents, v. Sarah POPOVICKI, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Abraham Hecht, Forest Hills, for appellants.
Koob, Magoolaghan & Salzman, New York City (Robert M. Salzman, of counsel), for respondents.
Before LAWRENCE, J.P., and EIBER, O'BRIEN and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for wrongful eviction, the defendants appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated June 1, 1990, which, inter alia, denied their motion to vacate their default in answering and a default judgment entered July 13, 1990, against them in the amount of $1,452,605.
ORDERED that the order is modified, on the law and as a matter of discretion, by granting the motion to the extent of vacating the default judgment entered July 13, 1990, and the determination made upon the assessment of damages, and otherwise denying the motion; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new assessment of damages, made on notice to the defendants.
The defendants failed to make a sufficient showing of a meritorious defense, an indispensable element of an application pursuant to CPLR 5015(a) (see, e.g., Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 463 N.Y.S.2d 192, 449 N.E.2d 1270; Christ-Mitch Realty Corp. v. Clarkson Realty Corp., 122 A.D.2d 245, 505 N.Y.S.2d 440; Central Savannah Riv. Area Resource Dev. Agency v. White Eagle Intl., 110 A.D.2d 742, 488 N.Y.S.2d 201; Passalacqua v. Banat, 103 A.D.2d 769, 477 N.Y.S.2d 398). Indeed, on this appeal, the defendants have abandoned the defenses advanced in the Supreme Court, Kings County. They assert a new theory in this court, that the action is barred by the applicable Statute of Limitations, which we have reviewed solely because "the question presented is one of law which appeared upon the face of the record and which could not have been avoided by the respondents if brought to their attention at the proper juncture" (Libeson v. Copy Realty Corp., 167 A.D.2d 376, 377, 561 N.Y.S.2d 604; see also, Block v. Magee, 146 A.D.2d 730, 732, 537 N.Y.S.2d 215). Nevertheless, upon that review we find the defense unavailing.
The plaintiffs vacated their apartment either on June 1, 1987, or July 3, 1987. Of the claims asserted in the complaint, a one-year period of limitations applied to the first, third, and fourth causes of action sounding in intentional tort (see, CPLR 215; Kolomensky v. Wiener, 135 A.D.2d 505, 507, 522 N.Y.S.2d 156; Hansen v. Petrone, 124 A.D.2d 782, 508 N.Y.S.2d 500). Thus, the action had to be commenced on June 1, 1988, or July 3, 1988, at the latest. However, not only is personal service on the defendants on June 1, 1988, undisputed, but the plaintiffs obtained a 60-day toll by filing the...
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