Capital One Bank v Dorian

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[*1] Capital One Bank v Dorian 2014 NY Slip Op 51791(U) Decided on December 11, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 11, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2013-205 RI C

Capital One Bank, Respondent,

against

Alison D. Dorian, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered December 12, 2012. The order denied defendant's motion, in effect, for leave to renew her prior motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover for breach of a credit card agreement, a default judgment was entered against defendant on March 24, 2004. Thereafter, defendant moved to vacate the default judgment. By order entered June 15, 2004, the Civil Court (Philip S. Straniere, J.) denied the motion on the ground that defendant had failed to demonstrate a meritorious defense to the action.

By order to show cause dated November 27, 2012, defendant moved, in effect, for leave to renew her prior motion to vacate the default judgment. By order entered December 12, 2012, the Civil Court (Mary Kim Dollard, J.) denied the motion. Defendant appeals from the December 12, 2012 order.

Since defendant relied upon "new facts" in her second motion to vacate, which were not offered in the first motion, the motion under review is, in effect, a motion for leave to renew her prior motion to vacate (CPLR 2221 [e] [1]). However, defendant offered no reasonable justification for failing to present these "new facts" in her prior motion (see CPLR 2221 [e] [3]; Sobin v Tylutki, 59 AD3d 701 [2009]). In any event, defendant's motion papers failed to demonstrate a reasonable excuse for her default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant's motion.

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.


Decision Date: December 11, 2014

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