Gabriel v. Town of Carmel

48 A.D.2d 683, 368 N.Y.S.2d 42, 1975 N.Y. App. Div. LEXIS 9712

Opinion

In an action to recover damages caused by flooding, allegedly due to negligence in the construction and maintenance of certain culverts and storm sewers, the appeal is from an order. of the Supreme Court, Putnam County, dated June 4, 1974, which denied a motion to vacate a default judgment. Order reversed, without costs, and motion granted. Although the affidavit of merits could have particularized the facts under which it is claimed that there is no liability, the Town of Carmel shows a meritorious defense to the action under the present status of the law (see Beck v City of New York, 23 Misc 2d 1036, affd 16 AD2d 809). Plaintiffs concede that an excusable default was shown. Therefore, and in light of the strong policy that matters be disposed of on the merits (Colgar Enterprises v Di Giaimo, 41 AD2d 654), the motion to vacate the default should have been granted. Latham, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.