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Lopez v. 724 Management

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 6, 2010

VERONICA LOPEZ, PLAINTIFF-RESPONDENT,
v.
724 MANAGEMENT, LLC, DEFENDANT-APPELLANT.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about February 26, 2009, which, inter alia, granted plaintiff's motion to reargue, and, upon reargument, vacated a prior order which had granted defendant's motion to vacate its default and denied the motion, unanimously affirmed, with costs.

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.

Tom, P.J., Mazzarelli, Nardelli, Acosta, Renwick, JJ.

8523/06

Defendant's failure to argue, either in its motion to vacate the default or in opposition to plaintiff's motion to reargue, that plaintiff failed to meet the statutory requirements of CPLR 3215(f), renders the argument unpreserved, and we decline to review it in the interest of justice (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 829-830[2008]). Were we to review it, we would find that plaintiff indeed met the statutory requirements.

The court providently exercised its discretion in denying defendant's motion to vacate its default, as defendant failed to offer a reasonable excuse for failing to appear (see CPLR 5015[a]). Defendant's excuse that it had moved and was no longer conducting business at the address where process was served, was belied by defendant's own documents tending to show the contrary (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9-10 [2002]; see also Cadle Co. v Nunez, 43 AD3d 653, 656 [2007]).

We have considered defendant's remaining contentions, including that vacating the default is warranted under CPLR 317, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100406

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