155 Realty, LLC v Mottola

[*1] 155 Realty, LLC v Mottola 2015 NY Slip Op 51069(U) Decided on July 13, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2014-448 RI C

155 Realty, LLC, Appellant, July 13, 2015

against

Birdie Mottola also Known as BIRDIE YOLANDA PADILLA, Respondent, -and- MONIQUEA L. WHITAKER, MARCUS CLAYTON, "JANE" CLAYTON, "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered January 9, 2013. The order granted a motion by tenant Birdie Mottola also known as Birdie Yolanda Padilla to vacate so much of a default final judgment as awarded landlord the principal sum of $4,257.28 as against her.

ORDERED that the order is reversed, without costs, and the motion by tenant Birdie Mottola also known as Birdie Yolanda Padilla to vacate so much of the default final judgment as awarded landlord the principal sum of $4,257.28 as against her is denied.

In this holdover proceeding, counsel for Birdie Mottola also known as Birdie Yolanda Padilla (tenant) filed a notice of appearance, but neither tenant nor her counsel appeared for a set trial date on December 28, 2005. After an inquest on that date, a default final judgment was entered, awarding landlord possession and the sum of $4,257.28. Subsequently, tenant submitted three orders to show cause to vacate the final judgment on various grounds, but never challenging service. Seven years later, in 2013, tenant moved to "vacate [the] money judgment," alleging, among other things, that she "never received any notice." In opposition, landlord demonstrated that, among other things, 14 payments had been made on the judgment in 2007 and 2008. Tenant's motion was granted. We reverse.

To the extent that tenant's motion can be construed as seeking to vacate so much of the default final judgment as awarded landlord the sum of $4,257.28 as against her for lack of personal jurisdiction (see CPLR 5015 [a] [4]), we note that any such objection was waived by, among other things, tenant's attorney's filing of a notice of appearance and tenant's failure to raise [*2]the issue in her prior order to show cause submissions (see CPLR 320; 3211 [e]; Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Washington v Palanzo, 192 Misc 2d 577 [App Term, 9th & 10th Jud Dists 2002]; see also Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452 [2007]; West 187 St. Assoc. v Rojas, 37 Misc 3d 135[A], 2012 NY Slip Op 52110[U] [App Term, 1st Dept 2012]).

To the extent that tenant's motion can be construed as seeking to vacate the monetary award of the default final judgment insofar as was against her based on excusable default (see CPLR 5015 [a] [1]), we note that tenant had to demonstrate, among other things, a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]), and tenant's conclusory statement that she did not owe the money in question is insufficient to establish such a defense (see e.g. LR Credit 15, LLC v Alford, 46 Misc 3d 146[A], 2015 NY Slip Op 50216[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; Todd Rotwein, D.P.M., P.C. v Goodson, 23 Misc 3d 135[A], 2009 NY Slip Op 50813[U] [App Term, 9th & 10th Jud Dists 2009]).

As tenant demonstrated no basis to vacate so much of the default judgment as awarded landlord the principal sum of $4,257.28 as against her, the Civil Court's order is reversed and tenant's motion is denied.

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

Decision Date: July 13, 2015