Rebeil Consulting Corp. v. Kappa Realty Corp.
664 N.Y.S.2d 617
N.Y. App. Div.
1997
Check Treatment

—In an action to foreclose a mortgage, the defendants Kappa Realty Corporation and Nicholas Kokinakis appeal from (1) an order of the Supreme Court, Nassau County (Lally, J.), dated August 29, 1996, which, inter alia, denied their motion to vacate their default in interposing an answer, and (2) an ex parte order of the same court, also dated August 29, 1996, which granted the plaintiffs motion to appoint a receiver.

Ordered that the first order dated August 29, 1996, is affirmed; and it is further,

Ordered that the appeal from the second order dated August 29, 1996, is dismissed, as no appeal lies from an order issued ex parte (see, Shaikh v Getty Petroleum Corp., 240 AD2d 651); and it is further,

Ordered that the respondent is awarded one bill of costs.

In order to establish entitlement to vacatur of a default in interposing an answer, the defendant must establish the existence of a reasonable excuse and a meritorious defense (see, Putney v Pearlman, 203 AD2d 333; Gamache v Ahern, 52 AD2d 836). There is no merit to the appellants’ purported defense of usury based upon a provision in the mortgage involved in this case increasing the interest to a higher rate upon a default in payment (see, Shorehaven Assocs. v King, 184 AD2d 764; Klapper v Integrated Agrie. Mgt. Co., 149 AD2d 765).

The appellants’ remaining contentions are similarly without merit. Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.