Natemeier v. Heim

81 A.D.2d 1008, 440 N.Y.S.2d 101, 1981 N.Y. App. Div. LEXIS 11760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1981
• Status: Published

Opinion

— Order unanimously affirmed with costs. Memorandum: In affirming we point out that plaintiff’s motion for a judgment by default based on the failure of the defendant Debra Heim to interpose a timely answer did not comply with CPLR 3215. Plaintiff’s complaint is unverified and no proof by affidavit was made “of the facts constituting the claim, the default and the amount due” (CPLR 3215, subd [e]). Thus any consideration of the issues of excusable default and the presence of a meritorious defense (see Barasch v Micucci, 49 NY2d 594; Bruno v Village of Port Chester, 77 AD2d 580) was rendered unnecessary (Union Nat. Bank v Davis, 67 AD2d 1034; Woodstock Lake Assn. v Pleasure Crest Corp., 65 AD2d 867; see, also, Red Creek Nat. Bank v Blue Star Ranch, 58 AD2d 983, 984). (Appeal from order of Niagara Supreme Court — default judgment.) Present — Cardamone, J. P., Simons, Hancock, Jr., Denman and Schnepp, JJ.