| Plaza Homes, LLC v Cole |
| 2003 NY Slip Op 51312(U) |
| Decided on August 15, 2003 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Appellate Term, Second Department |
Digest-Index Classification: Judgments—Default Judgment—Vacatur
|
[*2]Appeal by occupant from an order of the Civil Court, Queens County (A. Katz, J.), dated May 29, 2001, denying her motion to vacate a default final judgment. The appeal brings up for review, pursuant to CPLR 5517 (b), an order of said court (U. Leverett, J.), dated November 21, 2001, which, upon renewal, again denied the motion.
Appeal from order dated May 29, 2001 unanimously dismissed. Said order was superseded by the order of November 21, 2001.
Order dated November 21, 2001 affirmed without costs.
The court properly denied occupant's motion to vacate the default final judgment since occupant failed to establish an adequate excuse for her default (Gray v B.R. Trucking Co., 59 NY2d 649).
Golia and Rios, JJ., concur.
Pesce, P.J., dissents in part in a separate memorandum.
NO. 2001-823 Q C
PLAZA HOMES, LLC.,
Respondent,
[*3]-against
SONIA COLE,
Appellant.
Pesce, P.J.., dissents in part and votes to reverse the order dated November 21, 2001, grant tenant's motion to vacate the default final judgment, and dismiss the petition in the following memorandum:
In support of the motion which resulted in the order dated November 21, 2001, tenant showed that the foreclosure sale, pursuant to which petitioner purchased the premises, took place at a time when there was a bankruptcy stay in effect. In these circumstances, the sale was void (11 USC § 362 [a] [1]; In re Schwartz, 954 F2d 569; see Kaib v Feuerstein, 308 US 433, 438; In re 48th St. Steakhouse, Inc., 835 F2d 427, 431). Although the Bankruptcy Court could have granted petitioner retroactive relief annulling the stay (11 USC § 362 Ed]; see In re Siciliano, 13 F3d 748, 751; Sikes v Global Marine, Inc., 881 F2d 176, 178), petitioner did not seek such relief from the Bankruptcy Court. Thus, petitioner does not have a right to maintain this proceeding. Inasmuch as occupant also showed an excuse for her failure to appear on the adjourned date—in that she suffers [*4]from depression and tends to miss important appointments—the default final judgment should be vacated and the petition dismissed.
Decision Date: August 15, 2003