City of New York v. Elghanayan

Order, Supreme Court, New York County (Walter Tolub, J.), entered September 23, 1994, which, inter alia, denied defendants’ motion to renew a prior order, same court and Justice, dated May 26, 1994, denying defendants’ motion to vacate a default judgment, unanimously affirmed, without costs. The appeal, insofar as taken from that part of the order as denied defendants’ motion to renew the prior order, unanimously dismissed as taken from a nonappealable order, without costs. The IAS Court properly exercised its discretion in denying defendants’ renewal motion to vacate a default judgment where defendants failed to offer any excuse for not including in the original motion an affidavit from one of the defendants (Foley v Roche, 68 AD2d 558, 568). In the absence of an affidavit by one with personal knowledge of the facts, defendants failed to establish a meritorious defense to the action (James v Hoffman, 158 AD2d 398). In any event, defendants’ excuse that their failure to file an answer was due to their attorney’s mistaken belief that plaintiff had abandoned the action is belied by the record (see, Montalvo v Nel Taxi Corp., 114 AD2d 494, 495, lv denied and dismissed 68 NY2d 643). Concur—Ellerin, J. P., Kupferman, Ross, Asch and Tom, JJ.