Becker v. Babylon Transit Inc.

90 A.D.2d 815, 456 N.Y.S.2d 24, 1982 N.Y. App. Div. LEXIS 19053

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1982
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Nassau County (McGinity, J.), dated December 18, 1981, which granted the motion of defendant Inter County Motor Coach Corp. to vacate a default judgment entered against it. Order reversed, on the law, with $50 costs and disbursements, and motion denied. To vacate a default judgment, a defendant must demonstrate a reasonable excuse for the default and make a prima facie showing of legal merit. Law office failure, as a matter of law, is an insufficient excuse for the purpose of supporting a motion to vacate a default judgment (see Barasch v Micucci, 49 NY2d 594; Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900). Defendant Inter County Motor Coach Corp. has provided no affidavit of merits, attested to by one with personal knowledge of the facts in issue, to substantiate its assertion that it has a meritorious defense to plaintiff’s action. Further, the affirmation of its attorney, submitted in support of its motion to vacate its default, provides no explanation for that default. Titone, J. P., Lazer, Gibbons and Thompson, JJ., concur.