Peck v. Ernst Brothers, Inc.

73 A.D.2d 735, 423 N.Y.S.2d 286, 1979 N.Y. App. Div. LEXIS 14807

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1979
• Status: Published

Opinion

— Appeal from an order' of the County Court of Saratoga County, entered October 5, 1978, which denied defendant’s motion to vacate a default judgment in favor of plaintiffs. Even though defendant promptly moved to vacate the instant default judgment, it is not entirely without significance that there had been a prior default in the same action. While plaintiffs consented to have the former judgment vacated, it was not unreasonable to expect that defendant would avoid future lapses. Accordingly, when defendant failed to appear on the scheduled trial date, we do not believe the trial court abused its discretion in refusing to accept the excuse offered by its attorney that the pendency thereof had escaped his attention. Moreover, defendant’s moving papers fail to elaborate any evidentiary detail tending to demonstrate the existence of a meritorious defense. Order affirmed, with costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.