Salamak v. Kay Lincoln Mercury, Inc.

102 A.D.2d 820, 476 N.Y.S.2d 362, 1984 N.Y. App. Div. LEXIS 18995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1984
• Status: Published

Opinion

In an action for rescission and to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Queens County (Kassoff, J.), dated April 4,1983, which denied her motion which was, in effect, to vacate a default. 11 Order affirmed, with one bill of costs. 11 In March, 1982, the defendants moved to preclude the plaintiff from offering any evidence with respect to certain items contained in her bill of particulars dated March 1, 1982. Pursuant to court order, plaintiff served a supplemental bill of particulars dated August 2, 1982 which bill formed the subject matter of a second series of preclusion motions by the defendants in August, 1982. As a result of those applications an order was entered directing the plaintiff to serve a further bill of particulars. A supplemental bill of particulars was served and by notice of motion dated December 27,1982, the defendant Ford Motor Company again moved to preclude the plaintiff. By order dated April 4, 1983, that motion was granted on default. Thereafter, plaintiff moved for an order “renewing and rearguing the Order”, which defense counsel correctly characterized in his opposing papers as “one to vacate a default and is not a motion for renewal and reargument”. In order to vacate her default it was incumbent upon plaintiff to submit an affidavit of merits demonstrating the existence of a meritorious cause of action against the moving defendant. This she failed to do. Consequently, the order appealed from, which denied her motion, is affirmed. Bracken, J. P., O’Connor, Niehoff and Boyers, JJ., concur.