[DOWNLOAD] "Frank Klenk Et Al. v. Henry K. Kent" by Supreme Court of New York # eBook PDF Kindle ePub Free

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eBook details

• Title: Frank Klenk Et Al. v. Henry K. Kent
• Author : Supreme Court of New York
• Release Date : January 13, 1984
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 60 KB

Description

Order unanimously reversed, without costs, defendants motion denied and judgment reinstated. Memorandum: Plaintiffs appeal from an order granting defendant leave to reargue plaintiffs original motion for a default judgment and which, upon reargument, vacated the order granting the default judgment, vacated the default judgment, and directed plaintiffs to accept service of defendants answer and counterclaim. We reverse. para. A defendant late in answering is in default and his application to be excused therefrom is equivalent to a motion to open a default judgment (Bermudez v City of New York, 22 A.D.2d 865; see, also, Bernard v City School Dist., 96 A.D.2d 995). To succeed on the motion, defendant must show a reasonable excuse for his delay and must demonstrate that his defense or claim has merit (Fidelity & Deposit Co. v Andersen & Co., 60 N.Y.2d 693). para. Here, defendants delay of three months in serving an answer cannot be characterized as minor (Bernard v City School Dist., supra ; cf. State Farm Mut. Auto. Ins. Co. v Viger, 94 A.D.2d 592) and clearly resulted from law office failure. While Special Term had discretion to excuse such failure (CPLR 2005; 3012, subd [d]), it was improper to do so absent a showing of merit. Having failed to submit an affidavit, defendant relies solely upon the proposed answer and counterclaim for his showing of merit. Although a verified pleading alleging evidentiary facts may serve as an affidavit of merit (see CPLR 105, subd [t]), defendants pleading as it appears in the record, does not contain a verification. Beyond that, however, the answer merely denies "knowledge or information sufficient to form a belief" as to plaintiffs causes of action, and the counterclaim sets forth only conclusory facts in a skeletal manner and fails to address the gravamen of plaintiffs claims. The pleading, therefore, is insufficient as an affidavit of merit.

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