SORRENTI v. SHANE (2003)

Appeal by defendants from an order of the Civil Court, Queens County (C. Markey, J.), entered October 2, 2002, denying their motion to vacate a default judgment taken against them and for other relief.

Order unanimously affirmed without costs.

 Having requested that the court grant them permission to interpose a counterclaim for money plaintiff allegedly owed them for the subject vehicle repairs, as well as other affirmative relief, defendants waived any defect in personal jurisdiction, and by seeking to interpose such a claim, defendants have made affirmative use of the very court that they allege has no jurisdiction (Textile Technology Exch. v. Davis, 81 N.Y.2d 56, 595 N.Y.S.2d 729, 611 N.E.2d 768).

 Defendants failed to show reasonable excuse and a meritorious defense upon their motion to vacate the default judgment entered against them in this action for breach of contract to repair a vehicle in a workmanlike manner, and the court did not abuse its discretion in denying defendants' motion in the circumstances of this case (see e.g. Roussodimou v. Zafiriadis, 238 A.D.2d 568, 657 N.Y.S.2d 66).

 Plaintiff requested in his opposition to defendants' motion that the court render assistance to him in collecting the judgment.   Defendants' motion papers and brief each state that “Shane's Towing LLC” is a “successor” to Shane's Towing, Inc., and the motion further alleged that plaintiff owed over $3,000 to “SHARE'S TOWING LLC, as successor to SHARE'S TOWING, INC.” Given this admission of legal successor status, the court properly exercised its discretion in amending the caption to reflect the corporate

Nor did the court improperly refuse to credit defendants' affidavit, in which defendants' affiant, among other things, requested permission to interpose a counterclaim that patently contradicted the documentary evidence in the matter (see e.g. Petrovski v. Fornes, 125 A.D.2d 972, 510 N.Y.S.2d 366).

Defendants' remaining contentions have been considered and are without merit.