[*1]
O'Kelly v Doe
2016 NY Slip Op 50386(U) [51 Misc 3d 129(A)]
Decided on March 18, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 18, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ.
2013-2160 K C

Medhat O'Kelly, as Administrator of the Estate of MAGDY O'KELLY, Deceased, Respondent,

against

"John Doe", "JANE DOE", "TONY" SOLER, XYZ CORP. VACANT LOT BLOCK 3474, LOT 6, 1947 Also Known as 1949 BROADWAY BROOKLYN, NEW YORK 11207, "JOHN POE" and "JANE POE"., Occupants, and SILVIO HERRERA, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), dated October 3, 2013. The order denied Silvio Herrera's motion to vacate a default final judgment in a summary proceeding brought pursuant to RPAPL 713 (4).

ORDERED that the order is affirmed, without costs.

Following a tax sale, the subject premises was conveyed to petitioner's decedent by a referee's deed. Thereafter, in 2010, petitioner commenced this summary proceeding pursuant to RPAPL 713 (4) to recover possession of the premises. After occupants failed to appear or answer, a default final judgment awarding possession to petitioner was entered on March 29, 2010, and a warrant of eviction was subsequently executed. In September 2013, Silvio Herrera (appellant) moved to vacate the default final judgment and restore the case to the calendar. By order dated October 3, 2013, the Civil Court denied appellant's motion.

Upon a review of appellant's motion papers, we find that appellant failed to establish that he had standing to file the motion, since he stated that he was the "friend" of the tenant "John Doe." Even assuming, arguendo, that appellant had standing, his conclusory statement that he was "never served with any documents" was insufficient to rebut the process server's affidavit and raise an issue of fact necessitating a traverse hearing (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]). Therefore, appellant failed to establish that he was entitled to vacatur of the default final judgment pursuant to CPLR 5015 (a) (4). Moreover, inasmuch as appellant failed to provide a meritorious defense to the proceeding, he is not entitled to vacatur pursuant to CPLR 5015 (a) (1) (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Accordingly, the order is affirmed.

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


Decision Date: March 18, 2016