Mims v Perez

Mims v Perez 2010 NY Slip Op 09893 [79 AD3d 1106] December 28, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Devern Mims, Respondent,
v
Fausto Perez, Appellant.

—[*1] The Bhatta Law Group, P.C., New York, N.Y. (Mark Du of counsel), for appellant.

Gordon & Gordon, P.C., Forest Hills, N.Y. (Peter S. Gordon of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated April 7, 2010, which denied his motion pursuant to CPLR 5015 (a) (1) and (3) to vacate a judgment of the same court dated October 27, 2009, which, upon his default in answering the complaint and after an inquest on damages, was in favor of the plaintiff and against him in the principal sum of $100,000.

Ordered that the order is affirmed, with costs.

The defendant failed to meet his burden of establishing the existence of fraud, misrepresentation, or other misconduct on the part of the plaintiff and, therefore, was not entitled to vacatur of the judgment entered upon his default in answering the complaint pursuant to CPLR 5015 (a) (3) (see Sicurelli v Sicurelli, 73 AD3d 735 [2010]; Scheu v Fan Ru Tseng, 72 AD3d 930 [2010]).

The defendant's remaining contentions are without merit. Rivera, J.P., Covello, Eng, Leventhal and Austin, JJ., concur.