Becker Wrecking & Salvage Corp. v. Pinebrook Construction Corp.

22 A.D.2d 976, 254 N.Y.S.2d 747, 1964 N.Y. App. Div. LEXIS 2531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1964
• Status: Published

Opinion

Per Curiam.

The moving affidavit was completely inadequate to sustain the order opening defendant’s default in serving notice of appearance in the action. The affidavit was that of the attorney, without assignment of any reason for defendant’s failure to make it and with no claim of any knowledge on the attorney’s part. The purported affidavit of merits was ineffective for the same reason and, in any event, was legally insufficient, being a mere eonelusory statement with no factual showing of merits. Finally, no reason whatsoever was stated for defendant’s default, following the extension of time which plaintiff’s attorney granted the insurance company. On any subsequent motion, however, it will be plaintiff’s minimal obligation to disclose its cause of action, whether by production of the proposed complaint or otherwise, and to demonstrate any prejudice which it might sustain should an extension be granted. Order reversed, on the law and the facts, with $20 costs, and motion denied, with $10 costs; without prejudice to a new application on proper papers. Gibson, P. J., Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.