| CCU, LLC v Steier |
| 2014 NY Slip Op 51030(U) [44 Misc 3d 130(A)] |
| Decided on July 1, 2014 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through July 7, 2014; it will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.; op 38 Misc 3d 1209[A], 2012 NY Slip Op 52425[U]), entered December 12, 2012. The order denied plaintiff's motion, in effect, to set aside (1) a prior order of the same court dated September 13, 2012 granting "on consent" defendant's motion to vacate a default judgment, and (2) the dismissal of the complaint after trial.
ORDERED that the order is affirmed, without costs.
In this action to recover the principal sum of $11,419.59 for breach of a credit card agreement and based upon an account stated, a default judgment was entered on October 13, 2005 in favor of plaintiff. After several years in which defendant's income had been garnished to partially satisfy the judgment, defendant moved to, among other things, vacate the default judgment. The motion was granted, by order dated September 13, 2012, "on consent" of the parties. A trial was held, following which the complaint was dismissed. Thereafter, plaintiff moved to, in effect, vacate the order dated September 13, 2012 and the dismissal of the complaint after trial, on the ground that plaintiff's counsel's consent to vacate the default judgment had been based on duress and mistake. In addition, plaintiff's attorney alleged, among other things, that the attorney who had consented to the vacatur of the default judgment did not have the case file with him to review the facts of the case before consenting to the vacatur. By order entered December 12, 2012, the Civil Court denied plaintiff's motion.
Inasmuch as the order of September 13, 2012 was entered on consent, plaintiff bore the burden of establishing grounds sufficient to set it aside (see Hallock v State of New York, 64 NY2d 224 [1984]; Matter of Frutiger, 29 NY2d 143 [1971]; Nori-Alyce v Mark Y., 100 AD3d 1116, 1117 [2012]). In our view, plaintiff failed to make such a showing. Consequently, the Civil Court properly denied plaintiff's motion.
We note that the remaining issue raised by plaintiff on appeal, regarding the propriety of the Civil Court's denial of counsel's request for an adjournment of defendant's motion to vacate the default judgment, is not properly before this court, since it was not raised in the motion papers.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.