REBEIL CONSULTING CORP v. KAPPA REALTY CORPORATION

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

REBEIL CONSULTING CORP., Respondent, v. KAPPA REALTY CORPORATION, et al., Appellants, et al., Defendants.

Decided: November 24, 1997

Before BRACKEN, J.P., and PIZZUTO, ALTMAN and KRAUSMAN, JJ. Evan S. Hummel, Garden City, for appellants. Levy & Levy, New York City (Joshua Levy, of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Kappa Realty Corporation and Nicholas Kokinakis appeal from (1) an order of the Supreme Court, Nassau County (Lally, J.), dated August 29, 1996, which, inter alia, denied their motion to vacate their default in interposing an answer, and (2) an ex parte order of the same court, also dated August 29, 1996, which granted the plaintiff's motion to appoint a receiver.

ORDERED that the first order dated August 29, 1996, is affirmed;  and it is further,

 ORDERED that the appeal from the second order dated August 29, 1996, is dismissed, as no appeal lies from an order issued ex parte (see, Shaikh v. Getty Petroleum Corp., 240 A.D.2d 651, 659 N.Y.S.2d 490);  and it is further,

ORDERED that the respondent is awarded one bill of costs.

 In order to establish entitlement to vacatur of a default in interposing an answer, the defendant must establish the existence of a reasonable excuse and a meritorious defense (see, Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919;  Gamache v. Ahern, 52 A.D.2d 836, 382 N.Y.S.2d 827).   There is no merit to the appellants' purported defense of usury based upon a provision in the mortgage involved in this case increasing the interest to a higher rate upon a default in payment (see, Shorehaven Assocs. v. King, 184 A.D.2d 764, 587 N.Y.S.2d 190;  Klapper v Integrated Agric.   Mgt. Co., 149 A.D.2d 765, 539 N.Y.S.2d 812).

The appellants' remaining contentions are similarly without merit.

MEMORANDUM BY THE COURT.

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