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Janice Lee v. 215 West 88 Street Holdings

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


May 9, 2013

JANICE LEE,
PLAINTIFF-APPELLANT, --
v.
215 WEST 88 STREET HOLDINGS, LLC, ET AL.,
DEFENDANTS-RESPONDENTS.

Lee v 215 W. 88 St. Holdings, LLC

Decided on May 9, 2013

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.

Gonzalez, P.J., Tom, Sweeny, Renwick, Richter, JJ.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered June 28, 2012, which, to the extent appealed from as limited by the briefs, granted defendants' motion to vacate their default in not timely serving their answer, and denied plaintiff's cross motion for a default judgment and for injunctive relief, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting defendants' motion and denying plaintiff's cross motion as to defendants' default. Defendants' delay in appearing was brief, the default was not willful, there was no evidence that plaintiff was prejudiced, and defendants demonstrated the existence of a potentially meritorious defense (see D & R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 90 AD3d 403 [1st Dept 2011]).

The court also properly denied plaintiff's cross motion for injunctive relief requiring defendants to perform certain work in her apartment. Plaintiff failed to demonstrate that she was likely to succeed on the merits of her claims, that she would suffer irreparable injury in the absence of an injunction, and that a balance of the equities tips in her favor (see generally Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839 [2005]; see also CPLR 6301), or that the granting of the requested relief was essential to maintain the status quo (see Second on Second Cafe, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 264 [1st Dept 2009]).

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

ENTERED: MAY 9, 2013

CLERK

20130509

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