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Bank of N.Y. v. Donofrio

Appellate Term of the Supreme Court of New York, Second Department
Dec 2, 2005
2005 N.Y. Slip Op. 52101 (N.Y. App. Term 2005)

Opinion

2005-664 N C.

Decided December 2, 2005.

Appeal from an order of the District Court of Nassau County, First District (Erica L. Prager, J.), entered January 18, 2005. The order granted defendant's motion to vacate a default judgment.

Order unanimously reversed without costs, defendant's motion to vacate the default judgment denied and default judgment reinstated.

PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.


In or about April 2004, plaintiff commenced this action to recover the principal sum of $8,101.49 for monies owed on defendant's overdrawn personal checking account. Defendant did not file an answer, and a default judgment was entered against him in June 2004. Thereafter, defendant moved to vacate the default judgment. Plaintiff opposed the motion, which was subsequently granted by order entered January 18, 2005.

A defendant seeking to vacate a judgment entered upon his default in appearing or answering must establish both a reasonable excuse for the default and a meritorious defense to the action ( see CPLR 5015 [a]; Eugene DiLorenzo, Inc. v. Dutton Lbr. Co., 67 NY2d 138). Upon a review of the record on appeal, we find that defendant failed to establish a meritorious defense. Defendant asserted that he had disputes with plaintiff regarding penalties imposed on an account on which he was a co-signor with a former business partner, and on which there was an early withdrawal. Said account is clearly not the same account as the one upon which the instant action is based. The instant action was commenced to recover $8,101.49 for monies defendant allegedly overdrew on his personal checking account as indicated on defendant's checking account statement ending on November 12, 2002. As provided on page 16 of the "Account Agreements and Disclosures for Your Bank of New York Personal Checking, Savings, and CD Accounts," the terms of which were agreed to by defendant, the aforementioned bank statement is deemed correct and binding if defendant fails to notify plaintiff, in writing, of any errors or disputes within 30 days of the statement's closing date. Since defendant failed to do so, he does not have a meritorious defense.

Moreover, we note that there is no merit to defendant's contention that he had a reasonable excuse for his default.

Accordingly, we find that the court below improvidently exercised its discretion in granting defendant's motion to vacate the default judgment ( see e.g. Owaid v. Country-Wide Ins. Co., 5 AD3d 645; Forest Royal Assoc. v. Rothchild, 1 Misc 3d 135[A], 2003 NY Slip Op 51651[U] [App Term, 2d 11th Jud Dists]). Consequently, the order is reversed, defendant's motion to vacate the default judgment is denied and the judgment is reinstated.


Summaries of

Bank of N.Y. v. Donofrio

Appellate Term of the Supreme Court of New York, Second Department
Dec 2, 2005
2005 N.Y. Slip Op. 52101 (N.Y. App. Term 2005)
Case details for

Bank of N.Y. v. Donofrio

Case Details

Full title:THE BANK OF NEW YORK, Appellant, v. ANTHONY C. DONOFRIO, Respondent

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Dec 2, 2005

Citations

2005 N.Y. Slip Op. 52101 (N.Y. App. Term 2005)
814 N.Y.S.2d 559