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Mahamadu Trawally, et al v. East Clarke Realty Corp.

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 9, 2012

MAHAMADU TRAWALLY, ET AL.,
PLAINTIFFS,
v.
EAST CLARKE REALTY CORP., ET AL.,
DEFENDANTS. MAHAMADU TRAWALLY, ET AL.,
PLAINTIFFS-APPELLANTS,
v.
41 ELLIOT PLACE CORP., ET AL.,
DEFENDANTS,
41 INC., ET AL.,
DEFENDANTS-RESPONDENTS,

Trawally v East Clarke Realty Corp.

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.

Decided on February 9, 2012

Saxe, J.P., Sweeny, Acosta, DeGrasse, JJ.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered July 14, 2010, which, to the extent appealed from, upon a motion by defendants 41 Inc., Jacob Selechnik, and Ellen Selechnik (defendants) to vacate a prior order entered August 18, 2010 on default, vacated so much of the order as struck their answers on condition that, within 20 days of the date of the order, their attorney pay $2,500 to the Lawyers Fund for Client Protection, unanimously reversed, on the law, without costs, the motion denied, the prior order striking said defendants' answer reinstated, and the matter remanded for further proceedings consistent with this order. Appeal from order, same court and Justice, entered October 27, 2010, which granted defendants' motion to deem the foregoing monetary sanction paid, nunc pro tunc, as of July 26, 2010, unanimously dismissed, without costs, as academic.

Defendants moved pursuant to CPLR 5015(a)(1) to vacate the order striking their answer. A party seeking such relief must establish a reasonable excuse for its underlying default as well as a meritorious defense (see Ogen v Nordstrom, 85 AD3d 552 [2011]). Defendants' purported showing of a meritorious defense was insufficient because it was based on the affirmation of an attorney who had no personal knowledge of the facts alleged (see Thelen LLP v Omni Contr. Co., Inc., 79 AD3d 605, 606 [2010] lv denied 17 NY3d 713 [2011]).

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

ENTERED: FEBRUARY 9, 2012

CLERK

20120209

© 1992-2012 VersusLaw Inc.



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