Devern Mims, respondent, v. Fausto Perez, appellant.

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

Devern Mims, respondent, v. Fausto Perez, appellant.

2010-03845 (Index No. 42202/07)

Decided: December 28, 2010

REINALDO E. RIVERA, J.P. JOSEPH COVELLO RANDALL T. ENG JOHN M. LEVENTHAL LEONARD B. AUSTIN, JJ. The Bhatta Law Group, P.C., New York, N.Y. (Mark Du of counsel), for appellant. Gordon & Gordon, P.C., Forest Hills, N.Y. (Peter S. Gordon of counsel), for respondent.

Submitted-December 8, 2010


In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated April 7, 2010, which denied his motion pursuant to CPLR 5015(a)(1) and (3) to vacate a judgment of the same court dated October 27, 2009, which, upon his default in answering the complaint and after an inquest on damages, was in favor of the plaintiff and against him in the principal sum of $100,000.

ORDERED that the order is affirmed, with costs.

The defendant failed to meet his burden of establishing the existence of fraud, misrepresentation, or other misconduct on the part of the plaintiff and, therefore, was not entitled to vacatur of the judgment entered upon his default in answering the complaint pursuant to CPLR 5015(a)(3) (see Sicurelli v. Sicurelli, 73 AD3d 735;  Scheu v. Fan Ru Tseng, 72 AD3d 930).

The defendant's remaining contentions are without merit.



Matthew G. Kiernan

Clerk of the Court

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