New York Supreme and/or Appellate Courts Appellate Division, First Department
February 28, 2013
DORMITORY AUTHORITY OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,
M.T.P. 59 ST. LLC, ET AL., DEFENDANTS-APPELLANTS.
Dormitory Auth. of the State of N.Y. v M.T.P. 59 St. LLC
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 28, 2013 Tom, J.P., Sweeny, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered October 4, 2011, which denied defendants' motion to vacate an order of attachment entered on default, unanimously affirmed, without costs.
"A party seeking relief from an order or judgment on the basis of excusable default pursuant to CPLR 5015(a)(1) must provide a reasonable excuse for the failure to appear and demonstrate the merit of the cause of action or defense" (Goldman v Cotter, 10 AD3d 289, 291 [1st Dept 2004]). Here, the record demonstrates that the motion court exercised its discretion in a provident manner in denying the motion since defendants failed to show that their failure to appear and oppose the order to show cause for an order of attachment was not willful. Nor did defendants offer a meritorious defense to the specific allegations of asset transfers made with the intent to frustrate plaintiffs' ability to recover on the previously entered judgment.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 28, 2013
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