Appellate Division of the Supreme Court of New York, 2005

Sarva v. Chakravorty

Appellate Division of the Supreme Court of New York · Decided January 31, 2005

14 A.D.3d 689; 789 N.Y.S.2d 231; 2005 N.Y. App. Div. LEXIS 764

Cases that cite this one

8 later published cases cite this decision.

CitiMortgage, Inc. v. Etienne (Appellate Division of the Supreme Court of New York 2019)
Stroll v. Long Island Jewish Medical Center (Appellate Division of the Supreme Court of New York 2017)
Caprio v. 1025 Manhattan Avenue Corp. (Appellate Division of the Supreme Court of New York 2009)
Mortgage Electronic Registration Systems, Inc. v. Schuh (Appellate Division of the Supreme Court of New York 2008)
Wasif v. Khan (Appellate Division of the Supreme Court of New York 2007)
Diamond v. Vitucci (Appellate Division of the Supreme Court of New York 2007)
Goldberger v. Goldberger (Appellate Division of the Supreme Court of New York 2005)
Die Matic Products, Inc. v. Flair International Corp. (Appellate Division of the Supreme Court of New York 2005)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover on a mortgage note, the defendants appeal from an order of the Supreme Court, Queens County (Dye, J.), dated November 19, 2003, which denied their motion, in effect, to vacate their default in opposing the plaintiffs’ motion, inter alia, to restore the case to the active calendar.

Ordered that the order is affirmed, with costs.

*690Although the Supreme Court erred in determining that the demand dated October 7, 1999, attached to the compliance conference order, and signed by the court and by the attorneys for both parties, did not constitute a valid 90-day demand (see CPLR 3216; Vinikour v Jamaica Hosp., 2 AD3d 518, 519 [2003]; Aguilar v Knutson, 296 AD2d 562 [2002]), we nonetheless affirm the order appealed from on a different ground.

The defendants moved, in effect, to vacate their default in opposing the plaintiffs’ motion to restore the case to the active calendar. Accordingly, the defendants were required to demonstrate a reasonable excuse for their default and a meritorious defense (see CPLR 5015 [a] [1]; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393 [2004]; Spells v A&P Supermarkets, 253 AD2d 422 [1998]; Roussodimou v Zafiriadis, 238 AD2d 568, 568-569 [1997]). The defendants failed to set forth a reasonable excuse for their failure to oppose the motion. Although the defendants’ attorney claimed that he did not receive the plaintiffs’ motion papers, his unsubstantiated excuse of non-receipt was insufficient to rebut the proof that the motion papers were properly mailed and the presumption of receipt (see Platonov v Sciabarra, 305 AD2d 651 [2003]; Matter of Aetna Life & Cas. Co. v Walker, 255 AD2d 381, 382 [1998]; European Am. Bank v Abramoff, 201 AD2d 611, 612 [1994]). Cozier, J.P., S. Miller, Santucci and Fisher, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.