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Arlit Flushing Assoc. v Sherman
2005 NY Slip Op 51732(U) [9 Misc 3d 137(A)]
Decided on October 26, 2005
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.,
HON. WILLIAM P. McCOOE,
HON. PHYLLIS GANGEL-JACOB, , Justices.


Arlit Flushing Associates, Plaintiff-Respondent, NY County Clerk's No. 570377/05

against

Rodney E. Sherman,Calendar No. 05-234 Defendant-Appellant.


Defendant appeals from an order of the Civil Court, Bronx County, entered February 1, 2005 (Fernando Tapia, J.) which denied his motion to vacate a default judgment.


PER CURIAM

Order entered on February 1, 2005 (Fernando Tapia, J.) affirmed, with $10 costs.

Civil Court did not abuse its discretion in denying defendant's motion to vacate his default. Even if we were to find that defendant established a reasonable excuse for the default, i.e. inadvertent office failure, he failed to meet his burden of demonstrating a meritorious defense to the action. Defendant's motion is supported by the affirmation of counsel, who does not purport to have personal knowledge of the circumstances surrounding defendant's vacatur of the apartment or plaintiff's alleged tortious actions that prevented defendant from subletting the subject apartment (see Figueroa v. Luna, 281 AD2d 204 [2004]). Moreover, counsel's conclusory statement that defendant could produce witnesses to plaintiff's alleged tortious action is insufficient to make out a meritorious defense.

This constitutes the decision and order of the court.
I concur
Decision Date: October 26, 2005