Johnston v. De Cristofaro

Appeal by plaintiff from an order of the Supreme Court, Suffolk County, dated September 23, 1977, which granted defendants’ motion to vacate a default judgment entered against them for failing to appear in the action. Order reversed, on the law, with $50 costs and disbursements, motion denied and judgment reinstated. In our opinion, Special Term improvidently exercised its discretion in granting defendants’ motion to vacate the default judgment. We find that defendants have not satisfied any of the five prerequisites mandated by CPLR 5015 for vacating a default judgment. Furthermore, the purported affidavit of merits is patently insufficient. The record is conducive to no conclusion other than defendants had decided to ignore plaintiff’s summons and complaint. The belated motion to vacate, apart from its pleas for compassion, offers no tenable defense to the action. Hopkins, J. P., Damiani, Gulotta and Hawkins, JJ., concur.