Investment Corp. of Philadelphia v. Spector

12 A.D.2d 911, 210 N.Y.S.2d 668, 1961 N.Y. App. Div. LEXIS 12595

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 1961
• Status: Published

Opinion

Order, entered on August 10, 1960,

denying defendant-appellant’s motion to vacate the default judgment entered against him on April 21, 1960 for the sum of $10,216.53, unanimously affirmed on the law and on the facts, with $20 costs and disbursements to plaintiff-respondent. While there is a showing by defendant-appellant tending to indicate that his default was not deliberate, his papers do not establish that he does in fact have a meritorious defense to the action. The rule is that the opening of a default “ should be withheld when it is not shown that there is a meritorious controversy, for the courts should not be burdened with unfounded claims to relief nor should a just cause be delayed by the interposition of an unwarranted defense. Insistence on the observance of the rule makes for the orderly administration of justice, and is not the enforcement of a mere technical rule of practice.” (Rothschild v. Haviland, 172 App. Div. 562, 563; see, also, Benadon v. Antonio, 10 A D 2d 40.) A defendant in default does not establish a right to relief merely by presenting a proposed answer, containing denials and affirmatory defenses alleged principally in eonelusory form. In addition, he must show that there is support in fact for his denials and defenses. (See Fitzgerald Mfg. Co. v. Alexander, 200 App. Div. 164, appeal dismissed 234 N. Y. 608.) The affidavits submitted by the defendant upon the motion here do not show that he has in fact any defense to the action, and, therefore, the motion to open his default was properly denied. Concur — Breitel, J. P., Rabin, McNally, Stevens and Eager, JJ.