Carter v Daimler Trust

Carter v Daimler Trust 2019 NY Slip Op 08497 Decided on November 21, 2019 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 21, 2019
Richter, J.P., Manzanet-Daniels, Gische, Webber, Kern, JJ.
10413N 161730/15

[*1] Keith E. Carter, Plaintiff-Respondent,

v

Daimler Trust, Defendant-Appellant, Bernice P. Deleo, Defendant.

Montfort, Healy, McGuire & Salley LLP, Garden City (Donald S. Neumann, Jr. of counsel), for appellant.

Law Offices of Michael S. Lamonsoff, New York (Daniel Niamehr of counsel), for respondent.

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about November 30, 2018, which denied the motion of defendant Daimler Trust (Daimler) to vacate an order, same court (Leticia M. Ramirez, J.), entered March 18, 2016, granting plaintiff's unopposed motion for summary judgment on the issue of liability, and, upon vacatur, to dismiss the complaint as against Daimler, unanimously affirmed, without costs.

Daimler's motion to vacate the order entered on its default in opposing plaintiff's summary judgment motion was properly denied since Daimler did not move within one year of being served with the prior order and notice of its entry (see CPLR 5015[a][1]; Vaca v Village View Hous. Corp., 170 AD3d 619, 620 [1st Dept 2019]). Nor did Daimler present a valid excuse for its failure to do so within the prescribed time limitation (see Rosendale v Aramian, 269 AD2d 209, 210 [1st Dept 2000]).

In view of the foregoing, we do not reach Daimler's remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 21, 2019

DEPUTY CLERK