Opinion
2014-07-1
CCU, LLC, Appellant, v. Alexander STEIER, Respondent.
Present: PESCE, P.J., ALIOTTA and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.; op 38 Misc.3d 1209[A], 2012 N.Y. Slip Op 52425 [U] ), entered December 12, 2012. The order denied plaintiff's motion, in effect, to set aside (1) a prior order of the same court dated September 13, 2012 granting “on consent” defendant's motion to vacate a default judgment, and (2) the dismissal of the complaint after trial.
ORDERED that the order is affirmed, without costs.
In this action to recover the principal sum of $11,419.59 for breach of a credit card agreement and based upon an account stated, a default judgment was entered on October 13, 2005 in favor of plaintiff. After several years in which defendant's income had been garnished to partially satisfy the judgment, defendant moved to, among other things, vacate the default judgment. The motion was granted, by order dated September 13, 2012, “on consent” of the parties. A trial was held, following which the complaint was dismissed. Thereafter, plaintiff moved to, in effect, vacate the order dated September 13, 2012 and the dismissal of the complaint after trial, on the ground that plaintiff's counsel's consent to vacate the default judgment had been based on duress and mistake. In addition, plaintiff's attorney alleged, among other things, that the attorney who had consented to the vacatur of the default judgment did not have the case file with him to review the facts of the case before consenting to the vacatur. By order entered December 12, 2012, the Civil Court denied plaintiff's motion.
Inasmuch as the order of September 13, 2012 was entered on consent, plaintiff bore the burden of establishing grounds sufficient to set it aside ( see Hallock v. State of New York, 64 N.Y.2d 224 [1984]; Matter of Frutiger, 29 N.Y.2d 143 [1971]; Nori–Alyce v. Mark Y., 100 A.D.3d 1116, 1117 [2012] ). In our view, plaintiff failed to make such a showing. Consequently, the Civil Court properly denied plaintiff's motion.
We note that the remaining issue raised by plaintiff on appeal, regarding the propriety of the Civil Court's denial of counsel's request for an adjournment of defendant's motion to vacate the default judgment, is not properly before this court, since it was not raised in the motion papers.
Accordingly, the order is affirmed.