King v. City of Watervliet

177 A.D.2d 775, 575 N.Y.S.2d 1021, 1991 N.Y. App. Div. LEXIS 14346

Opinion

Appeal from an order of the Supreme Court (Conway, J.), entered August 15, 1990 in Albany County, which denied plaintiffs’ motion to vacate a default judgment entered against them.

We reject plaintiffs’ contention that Supreme Court erred in denying their motion to vacate the default judgment entered against them. The record supports the conclusion that plaintiffs failed to establish a justifiable excuse for the default and a meritorious claim (see, Amity Plumbing & Heating Supply. Corp. v Zito Plumbing & Heating Corp., 110 AD2d 863). They did not offer a credible excuse for their failure to timely serve their papers in opposition to defendant’s motion for summary judgment (see, Henderson v Stilwell, 116 AD2d 861, lv denied 68 NY2d 606; Dominski v Firestone Tire & Rubber Co., 92 AD2d 704). As the court noted, plaintiffs’ affidavits offered only conclusory averments which failed to show the existence of a triable issue of fact to defeat the initial motion for summary judgment and thus failed to establish a meritorious claim (see, Saeed v Boulevard Hosp., 109 AD2d 831). The parties’ remaining arguments have been considered and rejected as lacking in merit.

Casey, J. P., Weiss, Levine, Mercure and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.