Alter v. Chervin — 133 A.D.2d 795

Majority

p. 795

Yevgeniya Alter, Appellant, v Aron Chervin, Respondent, et al., Defendant.

— In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Williams, J.), dated June 2, 1987, which granted the motion of the defendant Aron Chervin pursuant to CPLR 5015 to vacate a default judgment

p. 796

entered against him and in favor of the plaintiff, and directed the plaintiff to accept his notice of appearance with a demand for a complaint.

Ordered that the order is reversed, in the exercise of discretion, with costs, and the motion is denied.

We find that the respondent’s motion to vacate the default judgment entered against him should have been denied. In his affidavit of merit, the respondent acknowledged an awareness of the hazardous condition which allegedly caused the plaintiff to sustain injuries, and additionally stated that his failure to correct the condition was "inadvertent”. It is apparent that these allegations do not present a viable defense and, in fact, may constitute a concession of liability. Therefore, the respondent’s purported affidavit of merit was deficient, and the respondent’s motion to vacate the default judgment should have been denied. Mullen, P. J., Eiber, Kunzeman and Spatt, JJ., concur.