Sturmthal v. All Transport, Inc.

Order, entered on July 10, 1964, granting motion to open default unanimously reversed on the facts and the law and in the exercise of discretion, with $30 costs and disbursements to appellant, and motion denied. Plaintiff defaulted on a motion to dismiss for lack of prosecution and a judgment of dismissal resulted. It is elementary that a proper affidavit of merits is an essential to open such a default. The affidavit submitted completely lacked evidentiary matter. In view of the difficulty plaintiff has had in supplying particulars of his claim, we cannot deem the failure to supply a proper affidavit of merits inadvertent. Concur — Breitel, J. P., Valente, McNally, Eager and Steuer, JJ.