Lanese v. Goldstein

Appellate Division of the Supreme Court of New York

Lanese v. Goldstein

80 A.D.2d 636, 436 N.Y.S.2d 84, 1981 N.Y. App. Div. LEXIS 10337

Appellate Division of the Supreme Court of the State of New York·Decided February 23, 1981·Published·Cited by 1 cases

Opinion

In an action on a contract, the plaintiff appeals from an order of the Supreme Court, Richmond County, entered July 17, 1980, which granted the defendant Goldstein’s motion for renewal and, upon renewal, inter alia, vacated a prior order denying said defendant’s application to vacate her default. Order modified, on the law, by deleting the second, third and fourth decretal paragraphs and substituting therefor a provision that, upon renewal, the original determination is adhered to. As so modified, order affirmed, with $50 costs and disbursements to plaintiff, and without prejudice to renewal on proper papers. The affidavit submitted in support of the instant motion was not based upon the personal knowledge of the affiant, and thus did not contain sufficient factual allegations to demonstrate a meritorious defense. In the absence of an adequate showing of merit, the default of defendant Goldstein should not have been vacated (see L. W. Mfg. v Gentile, 77 AD2d 865; Bruno v Village of Port Chester, 77 AD2d 580). Gibbons, J.P., Rabin, Gulotta and Margett, JJ., concur.

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In an action on a contract, the plaintiff appeals from an order of the Supreme Court, Richmond County, entered July 17, 1980, which granted the defendant Goldstein’s motion for renewal and, upon renewal, inter alia, vacated a prior order denying said defendant’s application to vacate her default. Order modified, on the law, by deleting the second, third and fourth decretal paragraphs and substituting therefor a provision that, upon renewal, the original determination is adhered to. As so modified, order affirmed, with $50 costs and disbursements to plaintiff, and without prejudice to renewal on proper papers. The affidavit submitted in support of the instant motion was not based upon the personal knowledge of the affiant, and thus did not contain sufficient factual allegations to demonstrate a meritorious defense. In the absence of an adequate showing of merit, the default of defendant Goldstein should not have been vacated (see L. W. Mfg. v Gentile, 77 AD2d 865; Bruno v Village of Port Chester, 77 AD2d 580). Gibbons, J.P., Rabin, Gulotta and Margett, JJ., concur.

Lanese v. Goldstein, 80 A.D.2d 636, 436 N.Y.S.2d 84, 1981 N.Y. App. Div. LEXIS 10337 (N.Y. Ct. App. 1981).

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