Terranova v. Gallagher Truck Center, Inc.

121 A.D.2d 621, 503 N.Y.S.2d 650, 1986 N.Y. App. Div. LEXIS 58606

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1986
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Cowley, J.), dated February 20, 1985, as denied his motion to renew a prior motion to vacate an order dismissing the complaint. The denial was without prejudice to another motion for renewal upon proper papers demonstrating a meritorious cause of action.

Order affirmed insofar as appealed from, with costs.

Special Term properly denied the plaintiff’s motion to vacate his default absent an adequate showing that his claim has legal merit. The plaintiff failed to submit an affidavit of merit containing evidentiary facts, attested to by a person with personal knowledge, and his complaint and bill of particulars, verified by his attorney, and containing conclusory assertions, was, in this case, inadequate to serve that purpose (see, Egan v Federated Dept. Stores, 108 AD2d 718). Niehoff, J. P., Rubin, Kunzeman and Spatt, JJ., concur.