Caton v. Lloyd

138 A.D.2d 442, 526 N.Y.S.2d 405, 1988 N.Y. App. Div. LEXIS 2802

Opinion

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Kings County (Vinik, J.), dated July 13, 1987, which granted the plaintiff’s motion for leave to enter a default judgment against the defendant, directed specific performance of the parties’ contract, and denied his cross motion, inter alia, for vacatur of his default and an extension of time to serve an answer.

Ordered that the order is affirmed, with costs.

In order to vacate his default, the defendant was required to "allege and factually establish the existence of a meritorious defense to [the] plaintiff’s claim[s]” (County Asphalt v North Rockland Underground Corp., 96 AD2d 570). Contrary to the defendant’s contention on appeal, his affidavit of merit submitted in support of his cross motion "did not contain sufficient factual allegations to demonstrate a meritorious defense” of laches (County Asphalt v North Rockland Underground Corp., supra, at 570). The facts alleged for the first time in the defendant’s brief have not been considered since they are dehors the record.

Accordingly, the Supreme Court, Kings County, properly denied the defendant’s cross motion, inter alia, to vacate his default in the absence of the requisite showing of a meritorious defense. Mangano, J. P., Lawrence, Spatt and Balletta, JJ., concur.