U.S. Equities Corp. v Melton

[*1] U.S. Equities Corp. v Melton 2004 NY Slip Op 51485(U) Decided on December 1, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS -x PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
2003-571 S C

U.S. EQUITIES CORP., Respondent,

against

JOHN J. MELTON, Appellant.

Appeal by defendant from an order of the District Court, Suffolk County

(S. Hackeling, J.), entered February 11, 2003, denying his motion to vacate a default judgment.

Order unanimously affirmed without costs.

In this action for breach of contract and account stated arising from defendant's default upon a credit card agreement with plaintiff's assignor, defendant failed to show either a reasonable excuse or a meritorious defense in support of his motion to vacate the default judgment entered against him, as required by CPLR 5015 (Putney v Pearlman, 203 AD2d 333 [1994]). Defendant provided only bare, unsubstantiated allegations that he did not receive service of process. Moreover, on the merits, he did not deny an underlying debt; rather, he averred as a defense that he had a preexisting oral agreement with plaintiff's assignor. Although he further averred that partial payment was made on this agreement, he provided no evidence of any such payment. Nor does his argument that plaintiff violated various provisions of UDCA Article 18-A in the course of this action have merit; this action was not commenced in the Commercial Claims Part of the court.

It must be noted, however, that although in denying defendant's motion the court below reached the proper result, it erred in stating, as grounds for the denial, that defendant's remedy was to commence a small claims action to compel the issuance of a satisfaction in exchange for payment of the remaining amount of the alleged agreement with plaintiff's assignor. This type of relief is equitable in nature and is beyond the scope of small claims jurisdiction (UDCA 1801).

Defendant's remaining contentions have been considered and are without merit. [*2]
Decision Date: December 01, 2004