Capital One Bank v Erhabor

[*1] Capital One Bank v Erhabor 2008 NY Slip Op 51455(U) [20 Misc 3d 132(A)] Decided on July 8, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-1038 K C.

Capital One Bank, Respondent,

against

Samuel A. Erhabor, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered May 23, 2007. The order denied defendant's motion to vacate a default judgment.

Order affirmed without costs.

In this action to recover the principal sum of $1,443.27 for breach of a credit card agreement and based upon an account stated, defendant defaulted in appearing, and a default judgment was entered. Although the judgment was subsequently vacated pursuant to a "so-ordered" stipulation, defendant again defaulted in appearing and moved several times by order to show cause to vacate the default. His applications were successively denied for improper service, for defendant's failure to appear on the return date of the motion, and ultimately for his failure to demonstrate a meritorious defense.

A defendant seeking to vacate a judgment on the ground of excusable default (CPLR 5015 [a] [1]) must demonstrate both a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Even assuming that defendant demonstrated a reasonable excuse for his failure to appear, he did not establish that he had a meritorious defense. Although the court below adjourned the matter in order for him to submit proof of payment in support of his defense, he did not avail himself of the opportunity. Since defendant failed to provide any evidence in support of his defense of payment, the court below did not improvidently exercise its discretion in denying his motion to vacate the default judgment.

Golia, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: July 8, 2008