County Asphalt, Inc. v. North Rockland Underground Corp.

96 A.D.2d 570, 465 N.Y.S.2d 257, 1983 N.Y. App. Div. LEXIS 19104

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 1983
• Status: Published

Opinion

— In an action to foreclose a mechanic’s lien, defendant Carl Zeiss, Inc., appeals, as limited by its brief, from so much of an order and judgment (one paper), of the Supreme Court, Westchester County (Rubenfeld, J.), entered November 8, 1982, as granted plaintiff’s motion, inter alia, for leave to enter a default judgment against it, denied its cross motion to vacate its default in answering, and directed a foreclosure sale of certain real property owned by it. Order and judgment affirmed insofar as appealed from, with costs. In order to open up a default, the moving party must first allege and factually establish the existence of a meritorious defense to plaintiff’s claim (Bouxsein v Bialo, 35 AD2d 523). The affidavit of merit submitted in support of appellant’s motion did not contain sufficient factual allegations to demonstrate a meritorious defense. In the absence of the requisite showing of such a defense, appellant’s motion to vacate must be denied {Láñese v Goldstein, 80 AD2d 636). To succeed in a motion to vacate a default, a defendant is required to also demonstrate that its default was'“excusable” (CPLR 5015, subd [a], par 1; Bouxsein v Bialo, supra). In the case at bar, appellant’s failure to serve its answer was not excusable, as it was notified of plaintiff’s clear intent to enter a default judgment and was given sufficient time in which to serve a responsive pleading. Titone, J. P., Mangano, O’Connor and Niehoff, JJ., concur.