Opinion
January 17, 1974
Appeal from the Erie Special Term.
Present — Goldman, P.J., Del Vecchio, Marsh, Moule and Simons, JJ.
Order unanimously reversed, without costs, defendant's motion granted and judgment vacated, upon condition defendant serve an answer with 20 days. Memorandum: A prima facie meritorious defense to plaintiff's action on two notes is established in the record. Defendant has not offered mere conclusions, which would be legally insufficient, but has shown "that there is support in fact for [its] denials and defenses" ( Investment Corp. of Philadelphia v. Spector, 12 A.D.2d 911). It is sufficient that a meritorious defense be raised by affidavits rather than by submission of a proposed answer. The record does not support the conclusion that there was a default so deliberate or contumacious as to justify forfeiture of a substantial defense. Considering plaintiff's apparent willingness to negotiate, the delay in proceedings was not overly long, and defendant moved expeditiously to vacate the default judgment once it was discovered.