Opinion
No. 2014–448RIC.
07-13-2015
155 REALTY, LLC, Appellant, v. Birdie MOTTOLA also Known as Birdie Yolanda Padilla, Respondent, and Moniquea L. Whitaker, Marcus Clayton, “jane” Clayton, “John DOe” and “Jane Doe,” Undertenants.
Opinion
ORDERED that the order is reversed, without costs, and the motion by tenant Birdie Mottola a/k/a Birdie Yolanda Padilla to vacate so much of the default final judgment as awarded landlord the principal sum of $4,257.28 as against her is denied.
In this holdover proceeding, counsel for Birdie Mottola a/k/a Birdie Yolanda Padilla (tenant) filed a notice of appearance, but neither tenant nor her counsel appeared for a set trial date on December 28, 2005. After an inquest on that date, a default final judgment was entered, awarding landlord possession and the sum of $4,257.28. Subsequently, tenant submitted three orders to show cause to vacate the final judgment on various grounds, but never challenging service. Seven years later, in 2013, tenant moved to “vacate [the] money judgment,” alleging, among other things, that she “never received any notice.” In opposition, landlord demonstrated that, among other things, 14 payments had been made on the judgment in 2007 and 2008. Tenant's motion was granted. We reverse.
To the extent that tenant's motion can be construed as seeking to vacate so much of the default final judgment as awarded landlord the sum of $4,257.28 as against her for lack of personal jurisdiction (see CPLR 5015[a][4] ), we note that any such objection was waived by, among other things, tenant's attorney's filing of a notice of appearance and tenant's failure to raise the issue in her prior order to show cause submissions (see CPLR 320 ; 3211[e]; Parasconda v. Club Mateem, Inc., 33 Misc.3d 141[A], 2011 N.Y. Slip Op 52201 [U] [App Term, 2d, 11th & 13th Jud Dists 2011] ; Washington v. Palanzo, 192 Misc.2d 577 [App Term, 9th & 10th Jud Dists 2002] ; see also Calderock Joint Ventures, L.P. v. Mitiku, 45 AD3d 452 [2007] ; West 187 St. Assoc. v. Rojas, 37 Misc.3d 135[A], 2012 N.Y. Slip Op 52110[U] [App Term, 1st Dept 2012] ).
To the extent that tenant's motion can be construed as seeking to vacate the monetary award of the default final judgment insofar as was against her based on excusable default (see CPLR 5015[a][1] ), we note that tenant had to demonstrate, among other things, a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986] ), and tenant's conclusory statement that she did not owe the money in question is insufficient to establish such a defense (see e.g. LR Credit 15, LLC v. Alford, 46 Misc.3d 146[A], 2015 N.Y. Slip Op 50216[U] [App Term, 2d, 11th & 13th Jud Dists 2015] ; Todd Rotwein, D.P.M., P.C. v. Goodson, 23 Misc.3d 135[A], 2009 N.Y. Slip Op 50813[U] [App Term, 9th & 10th Jud Dists 2009] ).
As tenant demonstrated no basis to vacate so much of the default judgment as awarded landlord the principal sum of $4,257.28 as against her, the Civil Court's order is reversed and tenant's motion is denied.
PESCE, P.J., WESTON and SOLOMON, JJ., concur.