| S.M.G. Partners v Chavez |
| 2006 NY Slip Op 50155(U) [10 Misc 3d 146(A)] |
| Decided on February 6, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through February 22, 2006; it will not be published in the printed Official Reports. |
Plaintiff appeals from an order of the Civil Court, New York County (Saliann Scarpulla, J.), entered September 14, 2005, which granted defendant's motion to vacate the default judgment, income executions and restraining notices.
PER CURIAM:
Order (Saliann Scarpulla, J.), entered September 14, 2005, reversed, with $10 costs, defendant's motion to vacate the default judgment, income executions and restraining notices denied.
The record shows that immediately following the commencement of this action in 1993, plaintiff's attorney sent defendant a stipulation of settlement providing for her to make monthly payments of $150. While defendant did not sign the stipulation, she made two payments on the claim to plaintiff's attorney. The second payment was accompanied by a letter stating that defendant was unable to make the $150 payments, and was willing to pay only $50 per month. A default judgment was entered against defendant in 1994, and an income execution issued on June 10, 1994.
More than a decade later, in September 2005, defendant moved to vacate the judgment, alleging that she was not served with the summons and complaint, and that her first notice of the action was a copy of an income execution. Defendant made no notation on the preprinted motion form as to the date she was served with the income execution. Her proposed verified answer simply stated that she was "unaware of this claim" and "disputing the entire matter."
The record thus makes clear that defendant had knowledge of the debt, if not the default judgment, and took no action for more than 11 years. When she finally moved to vacate the judgment, she failed to show a meritorious defense, and on appeal, merely suggests that she [*2]was under the impression that her co-defendant had satisfied the obligation. Under these circumstances and in view of the inherent prejudice occasioned by defendant's prolonged delay in contesting an acknowledged debt, CPLR 5015(a)(4) relief is unwarranted (see Bernstein v Blackshear, 198 AD2d 142 [1993]).
This constitutes the decision and order of the
court.
Decision Date: February 06, 2006