Moss v. Cooley

97 A.D.2d 590, 467 N.Y.S.2d 291, 1983 N.Y. App. Div. LEXIS 20206

Opinion

Motion for reargument granted, without costs, and decision dated October 28, 1982 rescinded, and order entered November 3, 1982 vacated (see Bernard v City School Dist., 96 AD2d 995). Upon reargument, order of Special Term entered November 16, 1981, which granted defendants’ motion to vacate a default judgment rendered in favor of plaintiff reversed, without costs, and motion by defendants denied. Upon review of the record in this case, we conclude that defendants failed to establish a meritorious defense and, therefore, Special Term abused its discretion in granting defendants’ motion to vacate the default (see Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Gray v B.R. Trucking Co., 59 NY2d 649). This determination is without prejudice to a motion for renewal by defendants at Special Term for consideration of an affidavit of merits. Sweeney, J. P., Kane, Main, Mikoll and Yesawich, Jr., JJ., concur.