Lewis v. Wheaton

Appellate Division of the Supreme Court of New York

Lewis v. Wheaton

63 A.D.2d 815, 405 N.Y.S.2d 840, 1978 N.Y. App. Div. LEXIS 11770

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 19, 1978

StatusPublished

Cited by2 cases

This text of 63 A.D.2d 815 (Lewis v. Wheaton) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lewis v. Wheaton, 63 A.D.2d 815, 405 N.Y.S.2d 840, 1978 N.Y. App. Div. LEXIS 11770 (N.Y. Ct. App. 1978).

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Opinion

Order [816]*816unanimously reversed, without costs, and motion denied. Memorandum: Plaintiffs actions were dismissed on May 6, 1975 pursuant to CPLR 3404. It is well settled that where a case has been deemed abandoned and dismissed under CPLR 3404 "a motion to open the default and restore the case to the calendar will require the same kind of proof of merit, lack of prejudice to the opposing party and excusable neglect as must be shown to open a default judgment” (McIntire Assoc. v Glens Falls Ins. Co., 41 AD2d 692, 693; Sesan v American Home Prods. Corp., 52 AD2d 1058). Special Term erred in granting plaintiffs motion to vacate the default and restore the actions to the calendar in the absence of "an affidavit of merits by a person having knowledge of the facts indicating a viable cause of action” (Mclntire Assoc. v Glens Falls Ins. Co., supra, p 692). The only affidavits submitted in support of the motion were those of plaintiffs attorney. His assertions of merit are conclusory and are based upon hearsay. (Appeal from order of Monroe Supreme Court—restore to calendar.) Present—Cardamone, J. P., Simons, Dillon, Hancock, Jr., and Denman, JJ.

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Order [816]*816unanimously reversed, without costs, and motion denied. Memorandum: Plaintiffs actions were dismissed on May 6, 1975 pursuant to CPLR 3404. It is well settled that where a case has been deemed abandoned and dismissed under CPLR 3404 "a motion to open the default and restore the case to the calendar will require the same kind of proof of merit, lack of prejudice to the opposing party and excusable neglect as must be shown to open a default judgment” (McIntire Assoc. v Glens Falls Ins. Co., 41 AD2d 692, 693; Sesan v American Home Prods. Corp., 52 AD2d 1058). Special Term erred in granting plaintiffs motion to vacate the default and restore the actions to the calendar in the absence of "an affidavit of merits by a person having knowledge of the facts indicating a viable cause of action” (Mclntire Assoc. v Glens Falls Ins. Co., supra, p 692). The only affidavits submitted in support of the motion were those of plaintiffs attorney. His assertions of merit are conclusory and are based upon hearsay. (Appeal from order of Monroe Supreme Court—restore to calendar.) Present—Cardamone, J. P., Simons, Dillon, Hancock, Jr., and Denman, JJ.

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Bluebook (online)

63 A.D.2d 815, 405 N.Y.S.2d 840, 1978 N.Y. App. Div. LEXIS 11770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-wheaton-nyappdiv-1978.

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