Cari v. Pastore

Mahoney, P. J. Appeal from an order of the Supreme Court (Cobb, J.), entered July 20, 1987 in Greene County, which, upon granting defendants’ motion for reargument, adhered to its prior decision denying defendants’ motion to vacate a default judgment. Defendants purchased a parcel of real property from plaintiff, who retained a mortgage given by defendants. Thereafter, because of a dispute regarding the condition of the property, defendants’ attorney advised plaintiff that further mortgage payments were being withheld and placed in an escrow account pending resolution of the dispute. Plaintiff commenced a foreclosure action. Claiming that defendants failed to answer, plaintiff obtained a default judgment. The premises were ultimately sold at a foreclosure sale on February 13, 1986. When defendants learned of the foreclosure sale, they moved to vacate the default judgment. [800] A hearing was held on the motion at which defendants’ former attorney testified that he personally prepared an answer and mailed it to plaintiffs attorney. Supreme Court found that defendants had failed to answer and refused to vacate the default judgment. Upon reargument this decision was adhered to. Defendants appeal. We affirm. This matter involved simply an issue of witness credibility. We see no reason to set aside Supreme Court’s determination that the testimony of defendants’ former attorney was not credible. Defendants also contend that, if there was a default, it ought to be excused. However, this issue was never raised in the original motion papers, nor has a proper showing for relief pursuant to CPLR 5015 (a) (1) been made (see, Matzen Constr. v Hale, 115 AD2d 913, 914). Order affirmed, without costs. Mahoney, P. J., Kane, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.