Reilly-Whiteman, Inc. v. Cherry Hill Textiles, Inc.

191 A.D.2d 486, 596 N.Y.S.2d 708, 1993 N.Y. App. Div. LEXIS 2101

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1993
• Status: Published

Opinion

—In an action to recover for goods sold and delivered, the plaintiff appeals from an order of the Supreme Court, Kings County (Golden, J.), dated March 5, 1991, which, inter alia, granted the defendant’s motion to vacate a judgment of the same court, entered January 2, 1991, upon the defendant’s default in answering, and gave the defendant leave to interpose an answer.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion is denied.

It is well-settled that a party seeking leave to open a default judgment must, inter alia, establish a meritorious defense (see, Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141; Gray v B. R. Trucking Co., 59 NY2d 649, 650). Although the law favors resolution of cases on the merits (see, Charmer Indus. v 71 Grand Liq. Corp., 128 AD2d 825), the defendant failed to allege facts sufficient to establish the existence of a meritorious defense. The affidavit in support of the defendant’s motion to vacate its default contained conclusory assertions of defects in the dyes sold and delivered to it by the plaintiff, without any evidentiary support (see, Lener v Club Med, 168 AD2d 433; Amity Plumbing & Heating Supply Corp. v Zito Plumbing & Heating Corp., 110 AD2d 863). Accordingly, its motion to vacate the default judgment is denied. Bracken, J. P., Lawrence, Eiber and Pizzuto, JJ., concur.