Opinion
2008-2021 K C.
Decided February 1, 2010.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered May 1, 2008. The order denied plaintiff's motion to vacate a default judgment which had dismissed plaintiff's cause of action and had awarded defendant the principal sum of $5,000 upon her counterclaim.
ORDERED that the order is affirmed without costs.
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ.
In this small claims action, substantial justice has been done between the parties according to the rules and principles of substantive law ( see CCA 1807). In support of plaintiff's motion to vacate a default judgment which had dismissed plaintiff's cause of action and awarded defendant the principal sum of $5,000 upon her counterclaim, plaintiff was required to show an excusable default, the absence of willfulness, and merit, which are not established by conclusory allegations ( Wall v Bennett, 33 AD2d 827). Plaintiff's bare allegations that she was sick and that she was confused about the date she was to appear in court are inadequate to establish an excusable default ( see Empire Ins. Co. v Zamiaty, 161 AD2d 178, 179; 757 E. 169th St. HDFC v Haney, 171 Misc 2d 965, 967; Ettinger v Wilke, 79 Misc 2d 387, 388). Moreover, with respect to her attempted showing of a meritorious defense to defendant's counterclaim, it was not enough for plaintiff to allege, without explanation, that she did not owe any money to defendant ( see Wall at 827).
Plaintiff's claim on appeal that she was not required to establish an excusable default because the court lacked jurisdiction (CPLR 5015 [a] [4]) is also without merit. Plaintiff asserted in her papers that she had never received notice of the counterclaim. CCA 1803 (c) provides that when a defendant files a counterclaim in the Small Claims Part, the defendant
"shall do so by filing with the clerk a statement containing such counterclaim within five days of receiving the notice of claim. At the time of such filing the defendant shall pay to the clerk a filing fee of five dollars plus the cost of mailings which are required pursuant to this subdivision. The clerk shall forthwith send notice of the counterclaim by ordinary first class mail to the claimant. If the defendant fails to file the counterclaim in accordance with the provisions of this subdivision, the defendant retains the right to file the counterclaim, however the claimant may, but shall not be required to, request and obtain adjournment of the hearing to a later date. The claimant may reply to the counterclaim but shall not be required to do so."
Here, plaintiff admits, in her brief on appeal, that she was informed on the return date, November 19, 2007, that defendant had filed a counterclaim against her, and she does not claim that the counterclaim was improperly interposed. In any event, the requirements of CCA 1803 (c) were satisfied. We note that, on November 19, 2007, the court adjourned the matter to January 30, 2008 for trial, at which plaintiff failed to appear. Thus, plaintiff's claims of lack of subject matter and of personal jurisdiction are without merit.
Accordingly, the order is affirmed.
Rios, J.P., Pesce and Golia, JJ., concur.