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Taveras v. Philibert

Supreme Court of New York, First Department

June 13, 2013

Candida Taveras, et al., Plaintiffs-Appellants,
v.
Norman W. Philibert, Defendant-Respondent. [And a Third-Party Action]

Michael Quintana, Brooklyn, for appellants.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondent.

Acosta, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Paul Wooten, J.), entered October 20, 2011, which denied plaintiffs' motion to vacate an order, same court and Justice, entered November 24, 2008, granting, on plaintiffs' default, defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly denied plaintiffs' CPLR 5015(a)(1) motion to vacate the prior order, granted on plaintiffs' default. Under that statutory provision, a party seeking such relief must move to vacate the order within one year of service of the order with notice of entry (see Caba v Rai, 63 A.D.3d 578, 580 [1st Dept 2009]). As the movant, it was plaintiffs' burden to establish their right to the relief, including that their motion was timely made. Yet, plaintiffs do not dispute that, as found by the motion court, they received notice of entry and a copy of the prior order approximately two years before seeking vacatur. Nor can plaintiffs point to any evidence contained in the record establishing that their motion was made within one year of the date they received the order. We therefore do not reach the issues of reasonable excuse and a meritorious cause of action.


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