Gilder v. Stern ( 2023 )

Gilder v Stern (2023 NY Slip Op 01839)

Gilder v Stern

2023 NY Slip Op 01839

Decided on April 06, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 06, 2023
Before: Manzanet-Daniels, J.P., Kern, González, Scarpulla, Pitt-Burke, JJ.

Index No. 653042/21 Appeal No. 17646&M-573-M-911 Case No. 2022-02066

[*1]Warren Gilder, Plaintiff-Respondent,

v

Michael Stern et al., Defendants-Appellants.

Beys Liston & Mobargha LLP, New York (Joshua D. Liston of counsel), for appellants.

Barclay Damon, LLP, New York (Michael J. Lane of counsel), for respondent.

Order, Supreme Court, New York County (Laurence Love, J.), entered May 9, 2022, which denied defendants' motion to vacate a prior order, same court and Justice, entered April 7, 2022, which granted, upon defendants' default, plaintiff's motion to reargue, and upon reargument, granted plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Supreme Court did not abuse its discretion in denying defendants' motion to vacate the order entered on default, as defendants presented no meritorious defense either to the underlying motion for summary judgment in lieu of complaint or plaintiff's motion to reargue (CPLR 5015[a][1]; Matter of American Reliable Ins. Co. v Delmonte, 189 AD3d 663, 663 [1st Dept 2020]). An email from defendant David Juracich specifically describes the amounts remitted to plaintiff and the basis for the payment, thus foreclosing any issues of fact.

Notwithstanding the court's apparent failure to consider defendant Stern's affidavit in support of its motion to vacate the default order, we find the affidavit failed to satisfy the defendant's burden. Notably, defendants have not submitted, or pointed to, any evidence that addresses the Juracich email.

We have considered defendants' remaining contentions and find them unavailing.

M-573 & M-911 — Gilder v Stern, et al.

Motion and cross motion for sanctions, denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 6, 2023