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S. Weiner Fur. Co. v. Dolphin Equip. Leasing

Appellate Division of the Supreme Court of New York, Third Department
Jan 4, 1979
67 A.D.2d 755 (N.Y. App. Div. 1979)

Opinion

January 4, 1979


Appeal from an order of the Supreme Court at Special Term, entered March 1, 1978 in Sullivan County, which denied defendants' application to vacate a default judgment. In 1974 plaintiff advanced $4,680 to defendant Dolphin Equipment Leasing Corporation (Dolphin) in connection with a proposed lease between Dolphin and one Brickman House, Inc. However, the proposed lease was never executed or performed by Dolphin and in March of 1976 plaintiff commenced an action by service of a summons with notice to recover the $4,680 "deposit", with interest thereon from June of 1975. A notice of appearance was never interposed, and, consequently, a default judgment was entered against Dolphin on August 11, 1976. Plaintiff then issued a property execution against Dolphin on or about November 25, 1977, and shortly thereafter defendants moved by an order to show cause to vacate the default judgment. Special Term denied the application and this appeal ensued. A party who seeks relief from a default judgment pursuant to CPLR 5015 (subd [a]) must show a valid excuse for the default and the existence of a meritorious defense (Wall v. Bennett, 33 A.D.2d 827). The affidavit of defendant Shaw, a principal officer of Dolphin and a law school graduate, stating that he was unaware of the consequences of court proceedings and of any defenses to the underlying action is inadequate to excuse the default (see John Malasky, Inc. v Mayone, 54 A.D.2d 1059, 1060). Secondly, since the affidavit and proposed answer submitted by defendants are in conclusory form, and are devoid of facts which would support their denials and defenses, a meritorious defense has not been established (Decapua v. Morrissey, 60 A.D.2d 754; Wall v. Bennett, supra; Investment Corp. of Philadelphia v. Spector, 12 A.D.2d 911). Order affirmed, with costs. Greenblott, J.P., Kane, Main, Mikoll and Herlihy, JJ., concur.


Summaries of

S. Weiner Fur. Co. v. Dolphin Equip. Leasing

Appellate Division of the Supreme Court of New York, Third Department
Jan 4, 1979
67 A.D.2d 755 (N.Y. App. Div. 1979)
Case details for

S. Weiner Fur. Co. v. Dolphin Equip. Leasing

Case Details

Full title:S. WEINER FURNITURE CO., INC., Respondent, v. DOLPHIN EQUIPMENT LEASING…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 4, 1979

Citations

67 A.D.2d 755 (N.Y. App. Div. 1979)

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