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SPODEK v. Godsberg, Zankel & Golden, P.C., nonparty respondent. (1999)

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

J. Leonard SPODEK, appellant, v. Joshua FEIBUSCH, et al., defendants; Godsberg, Zankel & Golden, P.C., nonparty respondent.

Decided: March 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and DANIEL W. JOY, JJ. E. Christopher Murray, Garden City, N.Y., for appellant. Godsberg, Zankel & Golden, P.C., Garden City, N.Y. (Samuel H. Golden of counsel), nonparty respondent pro se.

In an action, inter alia, for the dissolution of a partnership, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated December 31, 1997, which denied his motion to vacate a judgment in the amount of $18,658.10 in favor of the nonparty respondent Godsberg, Zankel & Golden, P.C., entered upon his default in opposing its motion to enforce its charging lien.

ORDERED that the order is affirmed, with costs.

 A decision to vacate a prior order or judgment rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion (see, Lee v. City of New York, 233 A.D.2d 510, 650 N.Y.S.2d 295).   The court's discretion to relieve a party from a judgment should not be exercised where that party has demonstrated lack of good faith or has been dilatory in asserting his or her rights (see, Greenwich Savings Bank v. JAJ Carpet Mart, Inc., 126 A.D.2d 451, 510 N.Y.S.2d 594).   The record is replete with evidence of the plaintiff's lack of good faith and failure to timely assert his rights.   Accordingly, it was not an improvident exercise of discretion for the Supreme Court to deny the plaintiff's motion to vacate the judgment.


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