Ad Press Ltd. v. Environmental Enterprises, Inc.

41 A.D.2d 636, 341 N.Y.S.2d 124, 1973 N.Y. App. Div. LEXIS 5024

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1973
• Status: Published

Opinion

Order, -Supreme Court, New York County, entered on November 13, 1972, denying plaintiff’s motion tó dismiss the. counterclaim and granting defendant’s cross motion to vacate the default judgment, unanimously reversed, on the law and the facts, defendant’s cross motion to vacate thé default judgment denied and plaintiff’s motion to dismiss the counterclaim granted. Appellant shall recover of respondent $60 costs and disbursements of this appeal. In order to vacate a default judgment, there must be a showing of both a valid excuse for the default and a meritorious defense (Levine v. Fat-Bar Argentinian Corner Best., 18. A D 2d '611; Mingis v. Daitch Crystal Dairies, 32 A D 2d 746). No affidavit of merits was annexed by the only party who had direct knowledge' of the alleged defense. The defense, itself, claiming that the. plaintiff’s right to be paid for its printing services was contingent upon the success of the defendant’s aborted public offering is refuted by documentary evidence to the contrary. Reinstatement of the default judgment by this court necessarily requires dismissal of the counterclaim. Concur — Stevens, P. J;, McGivern, Markewich, Nunez and Lane, JJ. • • .. .