Viva Development Corp. v. United Humanitarian Relief Fund

Jul 10, 2013
Versions:108 A.D.3d 619
968 N.Y.S.2d 379

Viva Development Corp., Respondent, v United Humanitarian Relief Fund et al., Defendants, and Afi Agbekodo, Appellant. [968 NYS2d 379]

In an action, inter alia, pursuant to RPAPL article 15 to determine title to real property, the defendant Afi Agbekodo appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), dated January 25, 2012, as denied that branch of her motion which was to vacate an order and judgment (one paper) of the same court entered June 28, 2011, which, inter alia, granted the plaintiffs motion for leave to enter a judgment against her upon her failure to appear or answer, and, in effect, denied the appellant’s cross motion, inter alia, to vacate her default.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant previously cross-moved, inter alia, to vacate her default in answering the complaint on the basis of improper service of process. The Supreme Court, in effect, denied her cross motion, granted the plaintiffs motion for leave to enter a default judgment, and entered judgment. In November 2011, the appellant then moved, by order to show cause, among other things, to vacate her default in answering the complaint on the same ground.

The appellant is precluded from making a second motion to vacate her default on the same ground raised in her prior motion (see JMP Pizza, LLC v 34th St. Pizza, LLC, 104 AD3d 648 [2013]; 47 Thames Realty, LLC v Robinson, 85 AD3d 851, 852 [2011]; New York State Higher Educ. Servs. Corp. v Adeniyi, 72 AD3d 1387 [2010]; Bianco v Dougherty, 54 AD2d 681 [1976]).

The appellant’s remaining contentions are without merit.

Skelos, J.P., Angiolillo, Roman and Hinds-Radix, JJ., concur.