Ionian Construction Inc. v. Stiftung

202 A.D.2d 553, 610 N.Y.S.2d 825, 1994 N.Y. App. Div. LEXIS 2599

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1994
• Status: Published

Opinion

—In an action to recover damages resulting from wrongful filing of a notice of pendency, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 21, 1992, which, inter alia, granted the motion of the defendant Morgran Stiftung to vacate his default in answering.

Ordered that the order is affirmed, with costs.

"The decision as to the setting aside of a default in appearing and answering is generally left to the sound discretion of the Supreme Court * * * the exercise of which will generally not be disturbed if there is support in the record therefor” (Mondrone v Lakeview Auto Sales & Serv., 170 AD2d 586). A defendant moving to vacate a default in answering must present a reasonable excuse for the delay and a meritorious defense (see, Brosnan v Behette, 186 AD2d 165). We are satisfied that the defendant Stiftung in the present case provided a reasonable excuse for his delay in answering. Further, contrary to the plaintiffs’ contentions, the record demonstrates that he has met the requirement of establishing a meritorious defense by affidavit of a person with sufficient knowledge of the facts (see, Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693). Thompson, J. P., Santucci, Krausman and Florio, JJ., concur.