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Oliphant Financial, LLC v. Marie F. Leonidas

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


August 5, 2011

OLIPHANT FINANCIAL, LLC,
RESPONDENT,
v.
MARIE F. LEONIDAS,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 2, 2010.

Oliphant Fin., LLC v Leonidas

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order denied defendant's motion to vacate a judgment entered December 14, 2009 and an underlying order entered April 30, 2009 granting, on default, plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover the sum of $10,322.72 allegedly owed to plaintiff based on defendant's default on a credit agreement, plaintiff moved for summary judgment. Defendant failed to file written opposition to the motion. By order entered April 30, 2009, the Civil Court granted plaintiff's motion. A judgment was entered pursuant to the order on December 14, 2009. Thereafter, defendant moved to vacate the judgment and the underlying order. By order entered March 2, 2010, the Civil Court denied defendant's motion.

With respect to the order entered April 30, 2009 granting plaintiff's motion for summary judgment, since no written opposition to the motion had been filed by defendant, the order must be considered as having been entered upon default (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Vanderveer Apts. v Moore, 2 Misc 3d 132[A], 2004 NY Slip Op 50123[U] [App Term, 2d & 11th Jud Dists 2004]). It is of no consequence that oral arguments were made on the motion since those arguments would have been unsworn and are of no evidentiary value (see Fox v T.B.S.D., Inc., 278 AD2d 612 [2000]). Thus, defendant's subsequent motion, the denial of which defendant appeals, must be treated as one seeking to open her default. Upon a review of the record, we find that defendant failed to demonstrate a reasonable excuse for her default and a meritorious defense (see CPLR 5015 [a] [1]; Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Accordingly, the order is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: August 05, 2011

20110805

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