U.S. Equities Corp. v Garcia (2005 NYSlipOp 51275(U))

[*1]

U.S. Equities Corp. v Garcia

2005 NYSlipOp 51275(U)

Decided on July 28, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2004-1703 W C

U.S. Equities Corp., Respondent,

against

Juan R. Garcia, Appellant.

Appeal by defendant from an order of the City Court of White Plains, Westchester County (B. Leak, J.), entered on October 4, 2004, denying his motion to vacate a default judgment.

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

The motion to vacate the default judgment was properly denied by the court below since defendant failed to submit a sworn affidavit in support of his claim of [*2]
lack of jurisdiction (see United Talmudical Academy of Kiryas Joel v. Khal Bais Halevi Religious Corp., 232 AD2d 547 [1996]). Since defendant may be able to establish the viability of said defense, the motion should be denied without prejudice to renewal upon proper papers.
Decision Date: July 28, 2005