Callahan Hydraulics, Inc. v. Mechanical Man Car Wash Manufacturing Co.

43 A.D.2d 896, 351 N.Y.S.2d 230, 1974 N.Y. App. Div. LEXIS 5941

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1974
• Status: Published

Opinion

Order unanimously reversed, without costs, defendant’s motion granted and judgment vacated, upon con- ■ dition defendant serve an answer with 20 days. Memorandum: A prima fade meritorious defense to plaintiff’s action on two notes is established in the record. Defendant has not offered mere conclusions, which would be legally insufficient, but has shown “ that there is support in fact for [its] denials and defenses ” (Investment Corp. of Philadelphia v. Spector, 12 A D 2d 911). It is sufficient that a meritorious defense be raised by affidavits rather than by submission of a proposed answer. The record does not support the conclusion that there was a default so deliberate or contumacious as to justify forfeiture of a substantial defense. Considering plaintiff’s apparent willingness to negotiate, the delay in proceedings was not overly long, and defendant moved expeditiously to vacate the default judgment once it was discovered. (Appeal from order of Erie Special Term denying motion to vacate default judgment in action on notes.) Present — Goldman, P. J., Del Vecchio, Marsh, Moule and Simons, JJ.