Opinion
570126/06.
Decided May 18, 2006.
Plaintiff appeals from an order of the Civil Court, Bronx County (Nelida Malave, J.), entered December 14, 2005, which granted defendant's motion to vacate a default judgment.
Order (Nelida Malave, J.), entered December 14, 2005, modified by reinstating the default judgment and granting defendant's motion solely to the extent of directing a hearing to determine the amounts, if any, due to plaintiff under the default judgment or overpaid by defendant as a result of the income execution; as modified, order affirmed, without costs.
PRESENT: Davis, J.P., Gangel-Jacob, Schoenfeld, JJ.
No legal basis was shown by defendant Staine to vacate the default judgment entered in January 1999. Despite the issuance of an income execution and the garnishment of defendant's wages commencing in 1999, defendant took no action to challenge the default judgment until August 2005, a delay which "evidenced a willingness to accede to the terms of the judgment" ( Cooper v. Carlson, 130 AD2d 703). However, in the circumstances of this case arising out of a consumer transaction, fairness dictates that the pro se defendant be given an opportunity to pursue her claim, as yet uncontradicted, that the amount of the funds levied was far in excess of the judgment as entered.
This constitutes the decision and order of the court.