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Alexander v. New York City Transit Authority

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 16, 2010

ERROL R. ALEXANDER, ET AL., APPELLANTS,
v.
NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT THIRD-PARTY PLAINTIFF-RESPONDENT; L.A. WENGER CONTRACTING CO., INC., THIRD-PARTY DEFENDANT-RESPONDENT (AND A FOURTH-PARTY ACTION).

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated January 21, 2009, which denied their motion, in effect, pursuant to CPLR 5015(a)(1) to vacate so much of a judgment of the same court (Knipel, J.) entered July 9, 2004, as, upon an order of the same court dated September 4, 2003, granting the separate unopposed motions of the defendant third-party plaintiff and the third-party defendant, inter alia, pursuant to CPLR 3126 to dismiss the complaint, dismissed the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, SHERI S. ROMAN, JJ.

(Index No. 13180/00)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiffs' attorney was served with a default judgment with notice of entry on September 3, 2004. Since the plaintiffs did not make their present motion, in effect, pursuant to CPLR 5015(a)(1) to vacate so much of the default judgment as dismissed the complaint until more than four years after the default judgment was served upon their attorney, the motion was properly denied as untimely (see CPLR 5015[a][1]; Terlizzese v Robinson's Custom Serv., Inc., 25 AD3d 547, 548; cf. Hartcorn v Hartcorn, 299 AD2d 395; Kachar v Berlin, 296 AD2d 479; Nahmani v Town of Ramapo, 262 AD2d 291).

RIVERA, J.P., COVELLO, ANGIOLILLO, LEVENTHAL and ROMAN, JJ., concur.

20100216

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