Opinion
November 30, 1987
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that on the court's own motion, Ellsworth N. Stewart, as executor of the estate of Martha L. Williams, is substituted as the party plaintiff, and the caption is amended accordingly; and it is further,
Ordered that the appeal by the defendant Suburban Delta, Inc. is dismissed on the ground it was not aggrieved by the order entered January 23, 1986, which could not determine the vacatur motion brought on its behalf by the defendant Warren pro se, because as a corporate defendant, it could only appear by an attorney (see, CPLR 321 [a]; Moustakas v. Bouloukos, 112 A.D.2d 981, 983); and it is further,
Ordered that on the appeal by Warren, the order is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs payable by the appellant Warren.
A court is authorized to vacate an order granting the entry of a default judgment pursuant to the provisions of CPLR 5015 (a) (1) upon a showing of an excusable default and a meritorious defense (Fidelity Deposit Co. v. Andersen Co., 60 N.Y.2d 693; Abrash v. Lavender, 119 A.D.2d 785). The movant's failure to assert facts constituting a meritorious defense is fatal to his motion to vacate (see, Matter of State of New York v. Wiley, 117 A.D.2d 856; Charbonneau Custom Logging v Belanger, 111 A.D.2d 583). Nor did the plaintiff's counsel, as the appellants contend, practice any fraud or deception upon the court in moving for leave to enter the default judgment (Lins v Lins, 98 A.D.2d 608).
In disposing of this appeal, we have not considered items in the appellants' appendix which were dehors the record made at the Supreme Court, Westchester County (see, Broida v. Bancroft, 103 A.D.2d 88, 93) other than taking judicial notice of an order entered June 27, 1985, which struck the appellants' verified answer. In any event, had we taken judicial notice of the appellants' verified answer, erroneously designated a verified complaint, the conclusory denials contained in this pleading would not suffice, in this case, as an adequate affidavit of merit (see, Bethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872). Mollen, P.J., Thompson, Rubin and Kunzeman, JJ., concur.