Stathatos v Ali

[*1] Stathatos v Ali 2006 NY Slip Op 52232(U) [13 Misc 3d 139(A)] Decided on October 27, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-124 Q C.

Peter Stathatos, Respondent,

against

Mohammed L. Ali, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Stephen S. Gottlieb, J.), entered August 19, 2005. The order denied defendant's motion to vacate a default judgment.

Order affirmed without costs.

In this small claims action to recover for damage to personal property, defendant defaulted twice in appearing for trial. Defendant's first default was vacated by the court on plaintiff's consent. After defaulting a second time, defendant moved by order to show cause to vacate the default. Following oral argument, the court denied defendant's motion.

In his motion papers, defendant failed to offer any proof to support his conclusory claim that his job prevented him from appearing in court and also failed to present a meritorious defense, except for the bald assertion that he did not damage plaintiff's personal property. In addition, at the oral argument of his motion, defendant contended that he failed to appear because he was out of the country, a claim which the court found to be inconsistent with his contention that his job kept him from appearing. While defendant argues on appeal that the court erred in considering his unsworn statement at oral argument, "a litigant cannot complain that his own witnesses were not sworn" (Brown v Ristich, 36 NY2d 183, 189 [1975]). Moreover, this was defendant's second default. Under these circumstances, the court did not improvidently exercise its discretion in denying defendant's motion. [*2]

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: October 27, 2006