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Venec P. Petrov v. Stacy Zill

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


March 14, 2011

VENEC P. PETROV,
RESPONDENT,
v.
STACY ZILL,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), dated November 24, 2009.

Petrov v Zill

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 14, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this small claims action to recover for the nonpayment of rent, a default judgment was entered in favor of plaintiff upon defendant's failure to appear for trial. After the Civil Court vacated the default judgment and defendant again defaulted in appearing for trial, the Civil Court granted defendant's second motion to vacate the default judgment. Upon defendant's third default in appearing for trial, the Civil Court denied defendant's motion to vacate the default judgment. This appeal by defendant ensued.

A review of the record indicates that the Civil Court did not improvidently exercise its discretion in denying defendant's motion to vacate the default judgment since defendant had failed to show a reasonable excuse for her third default in appearance and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; see also Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831 [1987]; Barasch v Micucci, 49 NY2d 594 [1980]; Martinez v Otis El. Co., 213 AD2d 523 [1995]; Tandy Computer Leasing v Video X Home Lib., 124 AD2d 530 [1986]). As substantial justice has been rendered between the parties in accordance with the rules and principles of substantive law (CCA 1804, 1807), the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: March 14, 2011

20110314

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