DC Media Capital LLC v Sivan

DC Media Capital LLC v Sivan 2012 NY Slip Op 07391 Decided on November 8, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 8, 2012
Mazzarelli, J.P., Sweeny, Renwick, Richter, Román, JJ.
8396

[*1]DC Media Capital LLC, doing 600378/07E business as Newtek Media Capital, Plaintiff-Respondent,

v

Avi Sivan, et al., Defendants-Appellants.




Law Offices of Joel B. Rudin, New York (Terri S. Rosenblatt of
counsel), for appellants.
Law Offices of Robert M. Brill, LLC, New York (Anita Jaskot
of counsel), for respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered February 18, 2011, which denied defendants' motion for leave to renew their motion to vacate an order and ensuing judgment entered on default, unanimously affirmed, with costs.

The "new facts" submitted on renewal, in the form of affidavits of merit, could have been submitted on the prior motion to vacate the default judgment, and defendants failed to offer a reasonable justification for the failure to do so (see CPLR 2221[e][3]; Matter of Beiny, 132 AD2d 190, 210 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]). The claim that defendants' former counsel mistakenly made the prior motion pursuant to CPLR 2221, which did not require the submission of an affidavit of merit, was undermined by counsel's identification of the motion as one to "vacate" a prior order and judgment.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 8, 2012, p.m.

CLERK