Cavalla v. Ernest F. Elliot, Inc.

Appellate Division of the Supreme Court of New York

Cavalla v. Ernest F. Elliot, Inc.

86 A.D.2d 884, 447 N.Y.S.2d 533, 1982 N.Y. App. Div. LEXIS 15535

Appellate Division of the Supreme Court of the State of New York·Decided February 22, 1982·Published·Cited by 3 cases

Opinion

In an action to recover damages for breach of contract, defendant Ernest F. Elliot appeals from an order of the Supreme Court, Dutchess County (Quinn, J.), dated April 9, 1980, which denied his motion to vacate a default judgment, entered after inquest upon his failure to appear at trial. Order affirmed, with $50 costs and disbursements. Under the circumstances of this case, Special Term erred in finding that defendant Elliot failed to establish a meritorious defense. Where an individual attempts to guarantee the liability of a corporation, his personal liability for breach of contract does not attach unless he subscribes to the contract in his individual capacity (General Obligations Law, § 5-701; Steinberg v Universal Machinenfabrik GMBH, 18 NY2d 943). However, a careful search of the record reveals that there was no valid excuse for the individual defendant’s default. His allegation, inter alia, that his nonappearance was occasioned by his wife’s failure to notify him of the impending trial, is insufficient to constitute excusable default (Walker v Walker, 38 AD2d 720). Titone, J. P., Mangano, Weinstein and O’Connor, JJ., concur.

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In an action to recover damages for breach of contract, defendant Ernest F. Elliot appeals from an order of the Supreme Court, Dutchess County (Quinn, J.), dated April 9, 1980, which denied his motion to vacate a default judgment, entered after inquest upon his failure to appear at trial. Order affirmed, with $50 costs and disbursements. Under the circumstances of this case, Special Term erred in finding that defendant Elliot failed to establish a meritorious defense. Where an individual attempts to guarantee the liability of a corporation, his personal liability for breach of contract does not attach unless he subscribes to the contract in his individual capacity (General Obligations Law, § 5-701; Steinberg v Universal Machinenfabrik GMBH, 18 NY2d 943). However, a careful search of the record reveals that there was no valid excuse for the individual defendant’s default. His allegation, inter alia, that his nonappearance was occasioned by his wife’s failure to notify him of the impending trial, is insufficient to constitute excusable default (Walker v Walker, 38 AD2d 720). Titone, J. P., Mangano, Weinstein and O’Connor, JJ., concur.

Cavalla v. Ernest F. Elliot, Inc., 86 A.D.2d 884, 447 N.Y.S.2d 533, 1982 N.Y. App. Div. LEXIS 15535 (N.Y. Ct. App. 1982).

Pincite

86 A.D.2d 884 (Cavalla v. Ernest F. Elliot, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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