City Factors Corp. v. Heron

33 Misc. 2d 105, 228 N.Y.S.2d 652, 1961 N.Y. Misc. LEXIS 2164

Opinion

Mario Pittoni, J.

Motion for an order opening defendant’s default and setting aside judgment entered against him on March 7, 1961 is denied.

The defendant has not shown why the investigation he now discusses was not made before he decided he had no defense and then willfully defaulted and permitted judgment to be entered against him. He does not claim, furthermore, that he was misled by the plaintiff into defaulting. His default was intentional (Mazzella v. American Home Constr. Co., 10 A D 2d 826) and was not “ the result of mistake, inadvertence, surprise or excusable neglect as provided for in section 108 of the Civil Practice Act ”. (General Aniline & Film Corp. v. Rembrandt Graphic Arts Co., 281 App. Div. 1028.) It would cause chaos in our courts if defendants were permitted to default, to then investigate for possible defenses at leisure and later, having discovered a possible defense, to be permitted to reopen the default and to contest the action.