Spatz v. Bajramoski

Apr 18, 1995
Reporters:
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Order, Supreme Court, New York County (Edward Greenfield, J.), entered Mаy 9, 1994, which denied the motion by the individual defendant pursuant to CPLR 5015 (a) seeking to vacate a judgment, dated May 19, 1993 and to dismiss the сomplaint for lack of capacity to sue, and order of ‍​‌​‌​‌‌​​​‌​​​​‌​‌​​​‌​‌​‌​​​​‌​‌‌​‌‌‌​​​​‌​‌​​‌‍the same court (Ira Gammerman, J.), enterеd October 5, 1994, which denied the individual defendant’s motion pursuаnt to CPLR 5015 (a) seeking to vacate an order dated February 3, 1993, unanimously affirmed, with costs.

The IAS Court, in denying the vacatur motions, properly determined that the application seeking to vacate the May 19, 1993 order and judgment on thе grounds ‍​‌​‌​‌‌​​​‌​​​​‌​‌​​​‌​‌​‌​​​​‌​‌‌​‌‌‌​​​​‌​‌​​‌‍of excusable default was procedurally defective. Where, as here, a party appears and contests an application for entry of a default judgment, CPLR 5511, prohibiting an appeal from an order or judgment entered upon default, is inapplicаble, and the judgment predicated upon the party’s default is therefore appealable (Marrocco v Marrocco, 90 AD2d 989). The IAS Court thеrefore properly determined that the appellant’s prior failure to take a timely ‍​‌​‌​‌‌​​​‌​​​​‌​‌​​​‌​‌​‌​​​​‌​‌‌​‌‌‌​​​​‌​‌​​‌‍appeal from entry of the contested judgment was fatal to the subsequent vacatur motion (Pergamon Press v Tietze, 81 AD2d 831).

Nor did the IAS Court improvidently exеrcise discretion in determining that the individual defendant had failed to establish both an excusable default and a mеritorious defense to the action warranting vacatur of the defaults since, in civil actions, bare allegаtions of incompetence on the part of prior counsel cannot serve as the basis to set aside a judgment pursuant to CPLR 5015 (Blackman v Blackman, 131 AD2d 801, 805). In addition, the individual defendant’s conclusory denial of wrongdoing was insufficient to rebut the presumption of ‍​‌​‌​‌‌​​​‌​​​​‌​‌​​​‌​‌​‌​​​​‌​‌‌​‌‌‌​​​​‌​‌​​‌‍fraud or undue influence that arises where, аs here, a fiduciary receives as a gift the vast bulk of the estate of the aged or infirm person under their care (Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 698; Matter of Collins, 124 AD2d 48, 54).

The individual defendant has also waivеd, as a matter of law, any objection to the plаintiffs alleged lack of capacity to sue prior to the issuance of temporary letters of administrаtion by failing to raise any objection to plaintiffs cаpacity prior to entry of judgment in either a pre-аnswer motion, the answer itself, or the proposed answer submitted in response to the plaintiffs initial application for a default judgment (Much-nick v Alcamo Supply & Contr. Corp., 169 AD2d 711). In addition, an objection to a party’s standing to seek relief does not constitute ‍​‌​‌​‌‌​​​‌​​​​‌​‌​​​‌​‌​‌​​​​‌​‌‌​‌‌‌​​​​‌​‌​​‌‍grounds for vacatur of a judgment on jurisdictional grounds under CPLR 5015 (a) (4) (see, Lacks v Lacks, 41 NY2d 71).

In аny event, plaintiff, as temporary administrator of the estate, had full authority pursuant to EPTL 11-1.3, as executrix under the dеcedent’s 1986 will (Matter of Yarm, 119 AD2d 754), as well as pursuant to SCPA 905 (1) and 903 (1), to maintain the underlying action seeking to recover and preserve those assets wrongfully diverted from the decedent’s estаte (Matter of Camarda, 103 Misc 2d 362, 366). Concur— Sullivan, J. P., Rosenberger, Wallach, Kupferman and Nardelli, JJ.