Opinion
6311 Index 250720/15
04-19-2018
In re James PETTUS, et al., Petitioners–Appellants, v. BOARD OF DIRECTORS, et al., Respondents–Respondents.
James Pettus, appellant pro se. Charlene Thompson, appellant pro se. Boyd Richards Parker & Colonnelli, P.L., New York (Brett L. Carrick of counsel), for respondents.
James Pettus, appellant pro se.
Charlene Thompson, appellant pro se.
Boyd Richards Parker & Colonnelli, P.L., New York (Brett L. Carrick of counsel), for respondents.
Friedman, J.P., Richter, Andrias, Kapnick, Webber, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered June 21, 2016, which, insofar as appealed from as limited by the briefs, granted respondents' motion to vacate a judgment, same court (Alison Y. Tuitt, J.), entered August 7, 2015, granting the article 78 petition on default, and upon vacatur, granted respondents' CPLR 3211 motion to dismiss the petition, unanimously affirmed, with costs.
The Supreme Court providently exercised its discretion in granting respondents' motion to vacate the default judgment (see Xiao Jia Lin v. Engleton, 121 A.D.3d 483, 483, 993 N.Y.S.2d 493 [1st Dept. 2014] ; Crespo v. A.D.A. Mgt., 292 A.D.2d 5, 9, 739 N.Y.S.2d 49 [1st Dept. 2002] ). We note that, in light of the recusal of the Justice who presided over the entry of the default judgment, the vacatur motion was properly entertained and decided by the Justice to whom the matter was reassigned (see Matter of Pettus v. Board of Directors, 155 A.D.3d 485, 486, 65 N.Y.S.3d 21 [1st Dept. 2017] ).
The Supreme Court likewise properly dismissed the petition pursuant to CPLR 3211(a)(1) and (7), based on documentary evidence and for failure to state a claim, as the record establishes that the co-op acted pursuant to a long-standing policy by withholding a garage key from petitioners, and its determination was protected by the business judgment rule (see 40 W. 67th St. v. Pullman, 100 N.Y.2d 147, 155, 760 N.Y.S.2d 745, 790 N.E.2d 1174 [2003] ; DeSoignies v. Cornasesk House Tenants' Corp., 21 A.D.3d 715, 718, 800 N.Y.S.2d 679 [1st Dept. 2005] ).