Swart v. Lehmann

Appellate Division of the Supreme Court of New York

Swart v. Lehmann

39 A.D.2d 807, 332 N.Y.S.2d 305, 1972 N.Y. App. Div. LEXIS 4481

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 25, 1972

StatusPublished

Cited by3 cases

This text of 39 A.D.2d 807 (Swart v. Lehmann) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Swart v. Lehmann, 39 A.D.2d 807, 332 N.Y.S.2d 305, 1972 N.Y. App. Div. LEXIS 4481 (N.Y. Ct. App. 1972).

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Opinion

Appeal from an order of the Supreme Court at Special Term, entered in Ulster County, which denied appellant’s motion to vacate a default judgment entered January 15, 1971 in Ulster County in favor of respondent and against appellant. To vacate a judgment entered because of excusable default, the defaulting party must show pursuant to CPLR 5015 (subd. [a], par. 1), a valid excuse for the default and a meritorious defense. (Arnold v. Weidman, 38 A D 2d 362; Wall v. Bennett, 33 A D 2d 827.) Conclusory allegations of appellant and his counsel that a meritorious defense exists, are not sufficient to warrant relief, nor are allegations contained in an unverified answer and counterclaim. (Cf. Industrial Bank of Schenectady v. Jack, 284 App. Div. 1083.) Furthermore, appellant’s excuse that the default was occasioned when he was unavoidably detained by a business emergency is contradicted by other statements by him contained in the record. Order affirmed, with costs. Herlihy, P. J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.

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Appeal from an order of the Supreme Court at Special Term, entered in Ulster County, which denied appellant’s motion to vacate a default judgment entered January 15, 1971 in Ulster County in favor of respondent and against appellant. To vacate a judgment entered because of excusable default, the defaulting party must show pursuant to CPLR 5015 (subd. [a], par. 1), a valid excuse for the default and a meritorious defense. (Arnold v. Weidman, 38 A D 2d 362; Wall v. Bennett, 33 A D 2d 827.) Conclusory allegations of appellant and his counsel that a meritorious defense exists, are not sufficient to warrant relief, nor are allegations contained in an unverified answer and counterclaim. (Cf. Industrial Bank of Schenectady v. Jack, 284 App. Div. 1083.) Furthermore, appellant’s excuse that the default was occasioned when he was unavoidably detained by a business emergency is contradicted by other statements by him contained in the record. Order affirmed, with costs. Herlihy, P. J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.

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Bluebook (online)

39 A.D.2d 807, 332 N.Y.S.2d 305, 1972 N.Y. App. Div. LEXIS 4481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swart-v-lehmann-nyappdiv-1972.

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