Opinion
December 16, 1985
Appeal from the Supreme Court, Westchester County (Benson, J.).
Order reversed insofar as appealed from, on the law, with costs, defendants' motion denied in its entirety, the default judgment, which awarded plaintiff the sum of $265,458.64, reinstated, and the amended verified answer stricken.
While CPLR 2005 now allows delay or default due to law office failure to be excused, it does not alter the requirement that in order to prevail on an application to vacate a default judgment, the defaulting party must show a meritorious defense (see, Yeshiva Beth Yehuda V'Chaim D'Betlan v Town of Shandaken, 100 A.D.2d 641, 642; see also, Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904, 905; Raphael v Cohen, 62 N.Y.2d 700, 701; Stolowitz v Mount Sinai Hosp., 60 N.Y.2d 685, 686; Amodeo v Radler, 59 N.Y.2d 1001, 1002, which pertains to a plaintiff's default). In the instant case, no affidavit of merit from an individual with personal knowledge of the facts has been submitted in support of defendants' motion. Moreover, in the course of their "continuing unlimited personal guarantee of payment", defendants explicitly waived "all claims of any nature whatsoever, whether by way of defense, setoff, counterclaim, or otherwise" which the corporation whose debt they had guaranteed then had or might thereafter acquire against plaintiff. Under these circumstances (see, Citibank v Plapinger, 66 N.Y.2d 90), Special Term erred as a matter of law in vacating defendants' default. Brown, J.P., Rubin, Lawrence and Kooper, JJ., concur.