L. W. Manufacturing, Ltd. v. Gentile

77 A.D.2d 865, 432 N.Y.S.2d 1010, 1980 N.Y. App. Div. LEXIS 12657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 4, 1980
• Status: Published

Opinion

In an action, inter alia, to recover damages for fraud, defendants Gentile and Feuer appeal from (1) an order of the Supreme Court, Queens County, dated November 13, 1979, which granted plaintiff’s motion to vacate a prior order dismissing the complaint for failure to respond to appellants’ interrogatories and (2) a further order of the same court, dated November 28, 1979, which, based upon the order dated November 13, 1979, granted plaintiffs motion to vacate the judgment that had been entered on its default. Orders, reversed, on the law, with one bill of $50 costs and disbursements, and motions to vacate denied. Plaintiffs affidavit of merits is conclusory and lacks sufficient factual basis to substantiate its claim. Furthermore, plaintiff failed to offer a valid excuse for its apparently deliberate default. In the absence of either a showing of merit or a reasonable excuse for the delay, it was error for Special Term to permit plaintiff to proceed against the appellants (see Barasch v Micucci, 49 NY2d 594). Damiani, J. P., Mangano, Rabin and Margett, JJ., concur.