SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
February 11, 2013
MIDLAND FUNDING, LLC DOING BUSINESS IN NEW YORK AS MIDLAND FUNDING OF DELAWARE, LLC,
ERLINDA M. ZARAGOZA,
Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered May 24, 2011.
Midland Funding, LLC v Zaragoza
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The order denied defendant's motion to vacate a default judgment.
ORDERED that the order is affirmed, without costs.
In this action for breach of contract and upon an account stated, plaintiff moved to compel discovery or, in the alternative, to strike defendant's answer and for entry of judgment in plaintiff's favor. By order dated July 9, 2009, the Civil Court granted the motion to the extent of providing that defendant had 30 days from the date of service of the order to comply with plaintiff's discovery demands; otherwise, plaintiff could enter judgment for the amount demanded in the complaint. Defendant never provided any discovery to plaintiff and failed to appear for a hearing on August 25, 2009, and a default judgment was entered against her on November 17, 2009. Thereafter, defendant moved to vacate the default judgment. The Civil Court denied defendant's motion on the ground, among others, that defendant had offered no excuse for her failure to comply with the discovery order.
In light of defendant's failure to provide any discovery to plaintiff or provide a reasonable excuse for her failure to do so, the Civil Court did not improvidently exercise its discretion in denying defendant's motion (see Gutman v A to Z Holding Corp., 91 AD3d 718 ).
Accordingly, the order is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 2013
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