| HSBC Bank USA N.A. v Nuteh 72 Realty Corp. |
| 2010 NY Slip Op 01617 [70 AD3d 998] |
| February 23, 2010 |
| Appellate Division, Second Department |
| HSBC Bank USA National Association,Appellant, v Nuteh 72 Realty Corp. et al., Respondents, et al.,Defendants. |
—[*1] Sanford Solny, Brooklyn, N.Y., for respondents.
In an action, inter alia, to set aside a conveyance of real property, the plaintiff appeals froman order of the Supreme Court, Kings County (Lewis, J.), dated March 20, 2009, which deniedits motion for leave to enter a default judgment against the defendants Nuteh 72 Realty Corp. andNathan Friedman, and granted the cross motion of those defendants, inter alia, to vacate a priororder dated January 3, 2008, granting the plaintiff's unopposed motion pursuant to CPLR 3126 tostrike their answer.
Ordered that the order dated March 20, 2009, is reversed, on the law, with costs, theplaintiff's motion for leave to enter a default judgment against the defendants Nuteh 72 RealtyCorp. and Nathan Friedman is granted, and the cross motion to vacate the order dated January 3,2008, is denied.
"A defendant seeking to vacate an order entered upon his or her default in opposing a motionmust demonstrate both a reasonable excuse for the default and a meritorious defense to themotion and the action" (Newell v Hirsch, 65 AD3d 1108, 1109 [2009]; see DiamondTruck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d 745 [2009];Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]; Matter ofGambardella v Ortov Light., 278 AD2d 494, 495 [2000]; Neuman v Greenblatt, 260AD2d 616, 617 [1999]). Here, in opposition to the plaintiff's motion for leave to enter a defaultjudgment against the defendants Nuteh 72 Realty Corp. and Nathan Friedman (hereinafter thedefendants), and in support of their cross motion, inter alia, to vacate their default in opposingthe plaintiff's motion to strike their answer pursuant to CPLR 3126, the defendants succeeded indemonstrating a reasonable excuse for their default (see Evolution Impressions, Inc. vLewandowski, 59 AD3d 1039, 1040 [2009]).
However, the defendants failed to demonstrate, through evidence in admissible form, theexistence of a meritorious defense, specifically, under the circumstances here, whether they weregood faith purchasers of the subject real property for valuable consideration. Friedman'saffirmation states only that "NUTEH is a 'good faith' purchaser for value of the Premises." Thisconclusory, [*2]self-serving, and bare legal conclusion wasinsufficient to establish the existence of a meritorious defense (see Diamond Truck LeasingCorp. v Cross Country Ins. Brokerage, Inc., 62 AD3d at 746; Matter of Atkin vAtkin, 55 AD3d 905 [2008]; cf. Atwater v Mace, 39 AD3d 573, 575 [2007]).Additionally, in the absence of any foundation, the defendants' submission of a one-page printoutof a New York City Department of Finance document entitled "A[utomated] C[ity] R[egister]I[nformation] S[ystem] Search Results By Parcel Identifier" did not constitute evidence inadmissible form sufficient to establish the existence of a meritorious defense (see generallyKnupfer v Hertz Corp., 35 AD3d 1237, 1238 [2006]; Triangle Transp., Inc. v Markel Ins.Co., 18 AD3d 229 [2005]; Matter of Haber v Haber, 306 AD2d 282, 283 [2003];Merrill/New York Co. v Celerity Sys., 300 AD2d 206, 207 [2002]). Accordingly, in theabsence of any admissible evidence sufficient to demonstrate the existence of a meritoriousdefense, the Supreme Court should have granted the plaintiff's motion for leave to enter a defaultjudgment, and denied the defendants' cross motion, inter alia, to vacate their default in opposingthe plaintiff's motion to strike their answer. Rivera, J.P., Florio, Dickerson, Belen and Roman,JJ., concur.