PERGOLIS SCHWARTZ INC v. The Bank of New York, et al., Respondents.

Reset A A Font size: Print

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

PERGOLIS SCHWARTZ, INC., Petitioner-Respondent, v. Hasan BIBERAJ, et al., Respondents-Appellants, The Bank of New York, et al., Respondents.

Decided: February 08, 2001

SULLIVAN, P.J., ROSENBERGER, MAZZARELLI, LERNER and BUCKLEY, JJ. Tracey B. Paer, for Petitioner-Respondent. Peter J. Pruzan, for Respondents-Appellants.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about February 9, 2000, which, in a turnover proceeding by petitioner judgment creditor against its own judgment debtors (“Associates”), its judgment debtors' judgment debtor (175 E. 74th Corp.) and the bank in which 175 E. 74th Corp. has a restrained account, denied Associates' motion to vacate the default judgment entered April 5, 1999 upon their failure appear in opposition to the petition, unanimously affirmed, without costs.

Associates' attorney representation that the reason Associates failed to appear in opposition to the petition was because he suffered a medical emergency the day before the return date does not explain why it then took Associates 11 months to move to vacate their default.   After the default, petitioner sought, and, over Associates' vigorous opposition, was granted leave to intervene as a party plaintiff in Associates' action against 175 East, which was already on appeal (Morgan Barrington Assocs. v. 175 E. 74th Corp., 266 A.D.2d 106, 698 N.Y.S.2d 647), and it was not until after Associates' judgment against 175 East was affirmed on that appeal that Associates finally moved to vacate their default herein.   Such intentional, sustained inaction, whatever its tactical justification, is inexcusable (Wilf v. Halpern, 234 A.D.2d 154, 651 N.Y.S.2d 30).   Nor does Associates demonstrate a meritorious defense.