M. Cooper Motor Leasing, Ltd. v. Data Discount Center, Inc.

125 A.D.2d 454, 509 N.Y.S.2d 385, 1986 N.Y. App. Div. LEXIS 62747

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1986
• Status: Published

Opinion

— In an action to recover damages for breach of a contract to lease an automobile, the defendants appeal from an order of the Supreme Court, Queens County (Lerner, J.), dated June 20, 1985, which denied their motion to vacate their default in appearing for trial.

Ordered that the order is affirmed, with costs.

In order for the defendants to be relieved of their default in appearing for trial, they must establish that (1) there is a reasonable excuse for their failure to appear, and (2) there exists a meritorious defense to this action (see, Saltzman v Knockout Chem. & Equip. Co., 108 AD2d 908; Passalacqua v Banat, 103 AD2d 769, appeal dismissed 63 NY2d 770; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 5015.04, at 50-288 — 50-289).

The defendants’ motion to vacate their default was supported only by the affirmation of their attorney who had no personal knowledge of the facts constituting the alleged meritorious defense. Such an affirmation has no substantive probative value as to a showing of a meritorious defense, and the motion to vacate the defendants’ default was therefore properly denied (see, Solargen Elees, v General Elec. Co., 86 AD2d 792; Andreano v Testa, 64 AD2d 1019; Ferreri v Winston Mall, 54 AD2d 970). Mangano, J. P., Brown, Weinstein and Spatt, JJ., concur.