Blitshteyn v. Mera

In an action for specific performance of a contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated February 17, 1988, which denied their motion to vacate a default judgment of the same court, dated January 22, 1984, upon their default in appearing on the scheduled trial date. Ordered that the judgment is affirmed, with costs. The Supreme Court properly exercised its discretion in denying the defendants’ motion to vacate the default judgment since neither the defenses asserted nor the counterclaims were shown to be meritorious (see, Perellie v Crimson’s Rest., 108 AD2d 903; Arred Enters. Corp. v Indemnity Ins. Co., 108 AD2d 624). Specifically, the defense of the plaintiffs’ failure to satisfy the mortgage contingency clause is both factually and legally baseless (see, Lane v Penner, 150 AD2d 643), and the claimed Statute of Frauds violation (General Obligations Law § 5-703 [2]) was untimely asserted and, hence, was waived (see, Marcoux v Marcoux, 123 AD2d 844; Barnum v Frickey, 115 AD2d 977). Mangano, J. P., Bracken, Kunzeman and Eiber, JJ., concur.