Small v. Applebaum
| Decision Date | 18 December 1980 |
| Citation | 434 N.Y.S.2d 24,79 A.D.2d 572 |
| Parties | Sidney P. SMALL et al., etc., Plaintiffs-Appellants, v. George APPLEBAUM, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
M. J. Stamler, New York City, for plaintiffs-appellants.
D. N. Raucher, New York City, for defendant-respondent.
Before ROSS, J. P., and LUPIANO, SILVERMAN, YESAWICH and CARRO, JJ.
Order, Supreme Court, New York County, entered June 20, 1980, which granted defendant's motion to vacate the default judgment entered in plaintiff's favor on May 8, 1980, unanimously reversed, on the law, with costs and with disbursements, and the motion denied.
In seeking to vacate the default judgment in this action to recover a broker's fee, it was incumbent upon defendant to show that the default was excusable and that there is a meritorious defense (See, Weinstein-Korn-Miller: New York Civil Practice § 5015.04). In the absence of a showing of both excusable default and a meritorious defense, relief under CPLR 5015(a)(1) is unavailable (See, Montmarte, Inc. v. Salvation Army, 20 A.D.2d 536, 245 N.Y.S.2d 155 (1st Dept. 1963)). Study of the record herein discloses that no sufficient showing of a meritorious defense was made. Documentary evidence (the brokerage agreement) reveals that defendant signed in an individual capacity.
To continue reading
Request your trial
-
Shaw v. Shaw
...of merit (see 5 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5015.04; Sorgie v. Dalton, 90 A.D.2d 790, 455 N.Y.S.2d 397; Small v. Applebaum, 79 A.D.2d 572, 434 N.Y.S.2d 24; Wall v. Bennett, 33 A.D.2d 827, 305 N.Y.S.2d 728; CPLR 5025, subd. [a], par. 1). The rule is not, however, applied with ......
- Cathleen P. v. Gary P.
-
Picotte Realty, Inc. v. Aragona
...entire record, we cannot say that Special Term abused its discretion in refusing to vacate the default judgment (see Small v. Applebaum, 79 A.D.2d 572, 434 N.Y.S.2d 24). Order affirmed, with ...
-
Stephen L. Cohan & Associates Architects v. Castle Village Owners Corp.
...the default and a meritorious defense (CPLR 5015[a]; Mon Amour Rest. v. Helgeson, 90 A.D.2d 742, 744, 455 N.Y.S.2d 804; Small v. Applebaum, 79 A.D.2d 572, 434 N.Y.S.2d 24). In our view, defendant failed to establish either. The excuse advanced here is that for a period of about six months f......