Opinion
April 29, 1993
Appeal from the County Court of Rensselaer County (Ceresia, Jr., J.).
Plaintiffs commenced this action against defendants in the City Court of the City of Troy. The case was referred to arbitration and, following a hearing at which only plaintiffs appeared, a default judgment was entered in their favor. City Court denied defendants' subsequent motion to vacate the default judgment. County Court affirmed the denial of that motion on appeal.
In our view, City Court did not abuse its discretion in denying defendants' motion to vacate the default judgment. To succeed on their motion defendants were required to demonstrate both a reasonable excuse for the default and a meritorious defense (see, Home City Sav. Bank v McManus, 173 A.D.2d 1056). Even if it is accepted that defendants presented a valid excuse for their default, they failed to set forth facts sufficient to prove a meritorious defense. Initially, we note that they failed to submit an affidavit of merit (cf., Brenner v Sweizer, 111 A.D.2d 433). Indeed, with respect to the question of a meritorious defense, there are no affidavits from anyone with personal knowledge of the facts (see, Wilcox v Parkland Dev. Corp., 157 A.D.2d 998, 999; see also, Cazer Homes v Relyea, 169 A.D.2d 862). Instead, defendants' counsel submitted his own affirmation incorporating by reference all of "the discovery proceedings to date". Although we have held that a verified answer may constitute a sufficient statement of merit (see, Elgart v Raleigh Hotel Corp., 115 A.D.2d 165, 166), defendants' answer was not verified. In any event, the answer contains conflicting assertions and, as such, fails to constitute an adequate affidavit of merit (cf., supra; see, Stewart v Warren, 134 A.D.2d 585; Matter of State of New York v Wiley, 117 A.D.2d 856). Nor do we accept defendants' argument that the verified interrogatories constituted a sufficient statement of merits (see, Terranova v Gallagher Truck Ctr., 121 A.D.2d 621). Defendants' remaining contentions have been considered and rejected for lack of merit.
Weiss, P.J., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the order is affirmed, with costs.