Topal v. Pace University

Appellate Division of the Supreme Court of New York

Topal v. Pace University

167 A.D.2d 387, 562 N.Y.S.2d 448, 1990 N.Y. App. Div. LEXIS 13736

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

DecidedNovember 13, 1990

StatusPublished

Cited by1 cases

This text of 167 A.D.2d 387 (Topal v. Pace University) 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

Topal v. Pace University, 167 A.D.2d 387, 562 N.Y.S.2d 448, 1990 N.Y. App. Div. LEXIS 13736 (N.Y. Ct. App. 1990).

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Opinion

In an action to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Wood, J.), entered June 20, 1989, which denied his application to vacate an earlier order of the same court dated December 10, 1987, granting the defendant’s motion to be relieved of its default in answering.

Ordered that the order is affirmed, without costs or disbursements.

In support of its motion to open its default in answering, the defendant presented a reasonable excuse for its delay and an affidavit of merit by one of its executive vice-presidents. The affidavit of merit primarily alleged legal defenses such as res judicata, based upon settlement of a 1977 suit by the plaintiff on similar facts, and the bar of the disclaimer and merger clauses contained in the parties’ 1976 realty contract. Although a subsequent pretrial deposition of this same executive vice-president cast some doubt upon his familiarity with the facts of this case, to which familiarity he had earlier attested, we agree with the Supreme Court that this new information did not establish perjury or warrant vacatur of the relief originally granted to the defendant.

We note, however, that since the appendix to the defendant’s brief contains documents dehors the record, the defendant is denied costs on appeal. Thompson, J. P., Lawrence, Eiber and Ritter, JJ., concur.

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In an action to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Wood, J.), entered June 20, 1989, which denied his application to vacate an earlier order of the same court dated December 10, 1987, granting the defendant’s motion to be relieved of its default in answering.

Ordered that the order is affirmed, without costs or disbursements.

In support of its motion to open its default in answering, the defendant presented a reasonable excuse for its delay and an affidavit of merit by one of its executive vice-presidents. The affidavit of merit primarily alleged legal defenses such as res judicata, based upon settlement of a 1977 suit by the plaintiff on similar facts, and the bar of the disclaimer and merger clauses contained in the parties’ 1976 realty contract. Although a subsequent pretrial deposition of this same executive vice-president cast some doubt upon his familiarity with the facts of this case, to which familiarity he had earlier attested, we agree with the Supreme Court that this new information did not establish perjury or warrant vacatur of the relief originally granted to the defendant.

We note, however, that since the appendix to the defendant’s brief contains documents dehors the record, the defendant is denied costs on appeal. Thompson, J. P., Lawrence, Eiber and Ritter, JJ., concur.

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Bluebook (online)

167 A.D.2d 387, 562 N.Y.S.2d 448, 1990 N.Y. App. Div. LEXIS 13736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/topal-v-pace-university-nyappdiv-1990.

Opinion

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