Technical Career Insts. v Rosario

[*1] Technical Career Insts. v Rosario 2020 NY Slip Op 50079(U) Decided on January 27, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper J.
19-362

Technical Career Institutes, Plaintiff-Appellant,

against

Angel Rosario, Jr., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Denise M. Dominguez, J.), entered on May 29, 2019, which granted defendant's motion to vacate a default judgment, liens and income execution and set the matter down for a pretrial conference.

Per Curiam.

Order (Denise M. Dominguez, J.), entered on May 29, 2019, reversed, without costs, motion denied and default judgment reinstated.

Civil Court improvidently exercised its discretion in granting defendant's fourth motion to vacate the default judgment. In a prior (unappealed) order, Civil Court concluded that defendant's affidavit, submitted approximately thirteen years after entry of the default judgment, failed to rebut the presumption of proper service, particularly given defendant's admission at oral argument that he lived at the address where service was made and was aware of the judgment since 2003. Furthermore, defendant's moving papers on this present application for vacatur relief failed to set forth any excuse for the default or evidence to substantiate his defense of payment (see CPLR 5015[a][1]; Leader v Parkside Group, 174 AD3d 420, 421 [2019], lv dismissed 33 NY3d 1111 [2019]). Defendant's assertion that "I have paid some or all of the money due and I do not owe the plaintiff that much money," and the unsworn hearsay contained in the purported credit report are insufficient to constitute a meritorious defense to the action (see U.S. Equities Corp. v Ruiz, 55 Misc 3d 143[A], 2017 NY Slip Op 50636[U] [App Term, 1st Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: January 27, 2020