First Bank of Ams. v Foster

[*1] First Bank of Ams. v Foster 2005 NYSlipOp 50446(U) Decided on March 31, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-92 K C

FIRST BANK OF THE AMERICAS FORMERLY KNOWN AS BANCO DE BOGOTA TRUST COMPANY, Respondent,

against

MARILYN FOSTER, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (B. Balter, J.), entered on April 4, 2003, which denied her motion to vacate a default judgment.

Order unanimously affirmed without costs.

In an order dated March 12, 1996, the court below granted defendant's prior motion seeking vacatur of a default judgment on condition that she serve an answer upon plaintiff or its attorneys and file proof of service of said answer with the court on or before April 15, 1996. It is uncontroverted that defendant did not comply with the conditions set forth in said order. The order further provided that in the event that defendant failed to comply with the terms of the order, the judgment would stand in full force and effect.

Approximately seven years later, defendant moves for the same relief to vacate the default judgment. She raises the same arguments as she raised in the earlier motion. Defendant proffers no reasonable excuse for her failure to comply with the lower court's order directing her to serve and file an answer on or before April 15, 1996. Moreover, the defenses raised by defendant in her brief on appeal are dehors the record and will not be considered on this appeal (see Katz v Rodolfo Valentin Salon, 3 Misc 3d 126[A], 2004 NY Slip Op 50312[U] [App Term, 9th & 10th Jud Dists]). Accordingly, defendant's motion was properly denied. [*2]
Decision Date: March 31, 2005