Starker v Citibank

[*1] Starker v Citibank 2007 NY Slip Op 50940(U) [15 Misc 3d 138(A)] Decided on May 7, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-808 K C.

Oscar Starker, Appellant,

against

Citibank, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered February 24, 2006. The order denied plaintiff's motion, in essence, to vacate an order granting on default defendant's motion for summary judgment.

Order affirmed without costs.

Plaintiff commenced this action seeking damages for defendant's alleged failure to properly handle restraining notices. The court below granted defendant's motion for summary judgment upon plaintiff's default in submitting written opposition thereto. Plaintiff thereafter made the instant motion seeking reargument. The court below, treating plaintiff's motion to reargue as seeking vacatur of the prior order entered upon his default, properly found that plaintiff had failed to raise a triable issue of fact in opposition to defendant's prima facie showing of entitlement to judgment as a matter of law. On the original motion, defendant demonstrated that plaintiff had failed to comply with the requirements for the proper issuance of restraining notices (see CPLR 5222 [c]), that defendant had nevertheless responded and satisfied one of the judgments, and that it held no assets that could be used to satisfy the other (see generally S & S Mach. Corp. v Manufacturers Hanover Trust Co., 219 AD2d 249 [1996]). Upon the instant motion, plaintiff failed to show any misconduct or improper procedure by defendant in handling the restraining notices (see id. at 253-254; see also Zemo Leasing Corp. v Bank of New York, 158 Misc 2d 991 [Sup Ct, Rockland County 1993]).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 7, 2007