Empire Portfolios, Inc. v Margolin

[*1] Empire Portfolios, Inc. v Margolin 2007 NY Slip Op 52360(U) [18 Misc 3d 126(A)] Decided on December 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1785 S C.

Empire Portfolios, Inc., Respondent,

against

George G. Margolin, Appellant.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered July 13, 2006. The order denied defendant's motion to vacate a default judgment.

Order affirmed without costs.

In this action to recover the principal sum of $10,233.97 for breach of a credit card agreement and based on an account stated, defendant defaulted in appearing at a conference on June 13, 2002, and a default judgment was entered on August 5, 2002. Nearly four years later, defendant moved to vacate the default judgment. The court below denied the motion as untimely. However, the record fails to contain proof of service of a copy of the judgment with written notice of its entry upon defendant (CPLR 5015 [a] [1]). Thus, defendant's time to move to vacate the default judgment had not begun to run (see Capital One Bank v Roman, 16 Misc 3d 127[A], 2007 NY Slip Op 51247[U] [App Term, 1st Dept]), and the court below should not have denied the motion on the ground that it was untimely.

Nevertheless, defendant's motion should be denied on the ground that he failed to establish a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138 [1986]). The alleged violation of the Fair Debt Collection Practices Act by plaintiff did not bar it from commencing an action against defendant within the 30-day validation period (see Federal Natl. Mtge. Assn. v Byron, 260 AD2d 534 [1999]; see also Educational Resources Institute, Inc. v DiFalco, 2003 NY Slip Op 50785[U] [App Term, 9th & 10th Jud Dists]). Accordingly, the order of the court below is affirmed.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: December 13, 2007