[DOWNLOAD] "Frank Inserra v. Richard Porto" by Supreme Court of New York ~ Book PDF Kindle ePub Free

August 02, 2021

eBook details

Title: Frank Inserra v. Richard Porto
Author : Supreme Court of New York
Release Date : January 12, 1970
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 59 KB

Description

Memorandum: Plaintiff has been granted a judgment in the amount of $3,591.50 in an action for malicious prosecution, following
defendant's default in answering or appearing in the action. Defendant thereafter moved to vacate the judgment on the ground
that the default was occasioned by the excusable neglect of his attorney, contending that an answer and notice of appearance
had been prepared but that he had neglected to serve them upon plaintiff's attorney. One of the grounds upon which Special
Term denied the motion, was defendant's failure to submit an affidavit of merit. It has long been the rule that to permit
a defaulting party to prevail upon a motion to vacate, he must present facts showing a justifiable excuse for the default
as well as a meritorious defense (Hurley v. Reoux, 29 A.D.2d 789; Community Nat. Bank v. Mon-Ami Corp., 23 A.D.2d 511). While
it may be held under the peculiar circumstances here present, that the neglect of defendant's attorney was excusable (cf.
Wall v. Bennett, 33 A.D.2d 827; Becker Wrecking & Salvage Corp. v. Pinebrook Constr. Corp., 22 A.D.2d 976), we are unable
to grant the requested relief since no affidavit of merit has been supplied (Roach v. County of Albany, 30 A.D.2d 885, affd.
on rearg., 31 A.D.2d 681; Monette v. Bonsall, 29 A.D.2d 839). Disposition Order unanimously modified to provide that the denial of the motion to vacate the default, be with leave to renew
upon proper papers, and as so modified, affirmed, with costs to respondent.