Opinion
May 15, 1981
Appeal from the Niagara Supreme Court.
Present — Cardamone, J.P., Simons, Hancock, Jr., Denman and Schnepp, JJ.
Order unanimously affirmed with costs. Memorandum: In affirming we point out that plaintiff's motion for a judgment by default based on the failure of the defendant Debra Heim to interpose a timely answer did not comply with CPLR 3215. Plaintiff's complaint is unverified and no proof by affidavit was made "of the facts constituting the claim, the default and the amount due" (CPLR 3215, subd [e]). Thus any consideration of the issues of excusable default and the presence of a meritorious defense (see Barasch v Micucci, 49 N.Y.2d 594; Bruno v Village of Port Chester, 77 A.D.2d 580) was rendered unnecessary (Union Nat. Bank v Davis, 67 A.D.2d 1034; Woodstock Lake Assn. v Pleasure Crest Corp., 65 A.D.2d 867; see, also, Red Creek Nat. Bank v Blue Star Ranch, 58 A.D.2d 983, 984).