Fischer v. Town of Clarkstown

86 A.D.2d 650, 446 N.Y.S.2d 407, 1982 N.Y. App. Div. LEXIS 15194

Opinion

In an action for money damages and an injunction, defendants Kury Homes, Inc. and Arthur Price, as President of Kury Homes, Inc., appeal (1) from an order of the Supreme Court, Rockland County (Stolarik, J.), entered December 4, 1980, which denied their motion to vacate their default in answering and for leave to serve an answer, and (2) as limited by their brief, from so much of a further order of the same court, entered April 8,1981, as, upon renewal, adhered to the original determination. Appeal from the order entered December 4, 1980 dismissed as academic. That order was superseded by the order granting renewal. Order entered April 8, 1981, affirmed insofar as appealed from. Plaintiffs are awarded one bill of $50 costs and disbursements. Defendants who seek to vacate a default judgment must (1) demonstrate that there was a reasonable excuse for the delay, and (2) make a prima facie showing of legal merit (see Bruno v Village of Port Chester, 77 AD2d 580). Appellants have offered an inadequate excuse for their delay and Special Term properly denied their motion to vacate their default (see Barasch v Micucci, 49 NY2d 594; Bruno v Village of Port Chester, supra). Mollen, P. J., Titone, O’Connor and Thompson, JJ., concur.