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Midland Funding, LLC v Dorian
2014 NY Slip Op 51790(U) [46 Misc 3d 127(A)]
Decided on December 11, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2013-204 RI C

Midland Funding, LLC, Respondent,

against

Alison D. Dorian, Appellant.


Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered December 12, 2012. The order denied defendant's motion, in effect, for leave to renew her prior motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover for breach of a credit card agreement, a default judgment was entered against defendant in January 2008, after defendant had failed to appear at a scheduled conference. In September 2012, defendant moved to vacate the default judgment. By order entered October 10, 2012, the Civil Court (Orlando Marrazzo, Jr., J.) denied defendant's motion on the ground that defendant had failed to demonstrate either a reasonable excuse for her default or a meritorious defense to the action. The court noted that defendant had not explained why she had not made her motion until almost five years after the default judgment had been entered.

Thereafter, defendant moved, in effect, for leave to renew her prior motion to vacate the default judgment. By order entered December 12, 2012, the Civil Court (Mary Kim Dollard, J.) denied the motion. Defendant appeals from the December 12, 2012 order.

Since defendant relied upon "new facts" in her second motion to vacate, which were not offered in the first motion, the motion under review is, in effect, a motion for leave to renew her prior motion to vacate (CPLR 2221 [e] [1]). However, defendant offered no reasonable justification for failing to present these "new facts" in her prior motion (see CPLR 2221 [e] [3]; Sobin v Tylutki, 59 AD3d 701 [2009]). In any event, defendant's motion papers failed to demonstrate a reasonable excuse for her default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant's motion.

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.


Decision Date: December 11, 2014