White-Shabazz v Tune-Up Store (2004 NY Slip Op 51551(U))

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White-Shabazz v Tune-Up Store

2004 NY Slip Op 51551(U)

Decided on December 8, 2004

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 8, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
2003-1326 D C

GAIL WHITE-SHABAZZ, Appellant,

against

TUNE-UP STORE and JOEL DIBLANCA, Respondents.

Appeal by plaintiff from an order of the Small Claims Part of the City Court, City of Poughkeepsie, Dutchess County (R. McGaw, J.), entered June 2, 2003, which denied her motion to vacate a default judgment.

Order unanimously modified by providing that plaintiff's motion to vacate the default judgment is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff's motion papers seeking vacatur of a default judgment was supported only by an unsworn statement which did not constitute evidence in admissible form.
The court below properly denied plaintiff's motion to vacate the default judgment. However, under the circumstances, the motion should have been denied without prejudice to renewal upon proper papers. Plaintiff's motion papers should contain an affidavit detailing the merits of her claim and a reasonable excuse for her default.
Decision Date: December 08, 2004