Cach, LLC v Camarena

[*1] Cach, LLC v Camarena 2013 NY Slip Op 52094(U) Decided on December 12, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

Cach, LLC, Appellant,

against

Juan Camarena, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 5, 2012. The order granted defendant's motion to vacate a judgment that had been entered pursuant to an order granting plaintiff's motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant's motion to vacate the judgment is denied, and the judgment is reinstated.

In this action to recover for breach of a credit card agreement and based on an account stated, a judgment was entered in favor of plaintiff in the principal sum of $2,752.30 pursuant to an order of the Civil Court (Rudolph E. Greco, Jr., J.) dated September 9, 2011, granting plaintiff's opposed motion for summary judgment. A copy of the order was served upon defendant with notice of entry on September 23, 2011. On January 23, 2012, defendant moved, by order to show cause, to vacate the judgment and to restore the action to the trial calendar, merely contending that he "need[ed] to be present in court to present [his] situation of debt" to possibly settle the action and that he could not get permission to take off from his job to appear in court. Plaintiff opposed the motion, contending, among other things, that the order granting summary judgment had not been entered on default and, consequently, that defendant had failed to demonstrate a sufficient basis to vacate the judgment. The Civil Court treated defendant's motion as one seeking leave to renew its opposition to plaintiff's motion for summary judgment and, upon granting renewal, denied plaintiff's motion, vacated the judgment, and restored the action to the calendar.

At the outset, we note that whereas defendant's motion papers sought the vacatur of the judgment, defendant failed to establish entitlement to such relief under any of the grounds set forth in CPLR 5015. In addition, the Civil Court improperly treated defendant's motion as one seeking leave to renew when it had not been identified as such and defendant had not offered any new facts or demonstrated that there had been a change in the law (see CPLR 2221 [e]). We note that defendant's motion could not be considered as one seeking leave to reargue since he did not identify it as such, and it was not based upon matters of fact or law alleged to have been overlooked or misapprehended by the court in determining the prior motion (see CPLR 2221 [d] [1], [2]). In any event, a motion to reargue would have been untimely as more than 30 days had elapsed after service upon defendant of a copy of the order determining the prior motion with [*2]notice of entry (see CPLR 2221 [d] [3]).

Accordingly, the order is reversed, defendant's motion to vacate the judgment is denied, and the judgment is reinstated.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 12, 2013