First Commerce Ltd. v Renanim Manhattan Inc.

[*1] First Commerce Ltd. v Renanim Manhattan Inc. 2018 NY Slip Op 51011(U) Decided on June 28, 2018 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Cooper, Edmead, JJ.
570076/18

First Commerce Ltd., Plaintiff-Appellant,

against

Renanim Manhattan Inc., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Sharpe, J.), entered December 11, 2017, which granted defendant's motion to vacate a default judgment.

Per Curiam.

Order (Carol R. Sharpe, J.), entered December 11, 2017, affirmed, with $10 costs.

Given the strong public policy in favor of deciding cases on their merits, we find that Civil Court providently exercised its discretion in granting defendant's motion to vacate the default judgment. Defendant's failure to timely answer was neither willful nor intentional (see Ahmad v Aniolowiski, 28 AD3d 692, 693 [2006]) and it has a meritorious defense to this action seeking damages based upon defendant's alleged noncompliance with an income execution. Defendant indicates that 10% of the (nonparty) judgment-debtor's wages are already being withheld pursuant to a previously served income execution relating to a separate judgment rendered against the judgment-debtor, and that plaintiff must await satisfaction of that separate judgment (see CPLR 5231[j]). In any event, even assuming in plaintiff's favor that defendant failed to obey the income execution, its liability for noncompliance would be limited to "accrued installments" (CPLR 5231[f]; see Starke v Beckwith Special Agency, 227 NY 42 [1919]), i.e., the amount not withheld from the judgment-debtor (see 11-5231 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 5231.23 [2018]), not the full amount of the money judgment entered against the judgment-debtor.

We have examined plaintiff's remaining contentions and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 28, 2018