Capital One Bank (USA) N.A. v Williams

[*1] Capital One Bank (USA) N.A. v Williams 2014 NY Slip Op 50661(U) Decided on April 14, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-2684 K C.

Capital One Bank (USA) N.A., Respondent,

against

Virlyn L. Williams, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 28, 2012. The judgment, entered upon defendant's default and upon an order of the same court dated August 10, 2012 denying defendant's motion to, in effect, open her default and to restore the matter to the calendar, awarded plaintiff the principal sum of $1,885.54.

ORDERED that, on the court's own motion, the notice of appeal from the order dated August 10, 2012 is deemed a premature notice of appeal from the judgment entered September 28, 2012 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action to recover for breach of a credit card agreement and upon an account stated, defendant served an answer but subsequently defaulted. Thereafter, defendant moved to, in effect, open her default and restore the matter to the calendar. By order entered August 10, 2012, the Civil Court denied the motion. Defendant's notice of appeal from that order is deemed a premature notice of appeal from the judgment which was subsequently entered on September 28, 2012 (see CPLR 5520 [c]). Although the judgment was entered on default, the appeal from the judgment brings up for review the order entered August 10, 2012, as appellant may, on such an appeal, obtain review of " matters which were the subject of contest below' " (Credit-Based Asset Servicing & Securitization v Chaudry, 304 AD2d 708, 708 [2003], quoting James v Powell, 19 NY2d 249, 256 n 3 [1967]).

In support of her motion, defendant was required to establish both a reasonable excuse for her default and a meritorious defense to the action (see Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Upon a review of defendant's moving papers, we find that she failed to establish a meritorious defense to the action. Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant's motion to open her default.

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 14, 2014