ARIAS v. Binberk Realty Corp., Defendant–Respondent. (2025)

Supreme Court, Appellate Division, First Department, New York.

Wilmadro D. ARIAS, as Administrator of the Estate of Oneido Arias, Plaintiff–Appellant, v. The CITY OF NEW YORK et al., Defendants, Binberk Realty Corp., Defendant–Respondent.

5361

Decided: December 11, 2025

Kern, J.P., Friedman, Rodriguez, Pitt–Burke, Rosado, JJ.

Sonin & Genis, LLC, Bronx (Robert J. Genis of counsel), for appellant. Hecht Law Group, PLLC, West Hempstead (Mitchell M. Hecht of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 11, 2025, which, to the extent appealed from, granted defendant Binberk Realty Corp.'s motion for leave to reargue its motion pursuant to CPLR 317 to vacate a default order, same court (Larry S. Schachner), dated April 18, 2014, and upon reargument, granted the motion to vacate, unanimously reversed, on the law, without costs, and the motion denied.

Defendant timely filed its motion to vacate the default order under CPLR 317 because, as plaintiff concedes, no entry of judgment was ever filed (see Olivaria v. Lin & Son Realty Corp., 84 A.D.3d 423, 424–425, 922 N.Y.S.2d 337 [1st Dept. 2011]).

Nevertheless, in this trip and fall action alleging a defect in a public sidewalk, defendant failed to demonstrate a meritorious defense as required by CPLR 317. The affidavit from defendant's property manager contains only general denials of its duty and notice (see Hasnat v. ADP Realty Ltd., 231 A.D.3d 539, 218 N.Y.S.3d 320 [1st Dept. 2024]).

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