Appellate Division of the Supreme Court of New York, 1980

L. W. Manufacturing, Ltd. v. Gentile

L. W. Manufacturing, Ltd. v. Gentile
Appellate Division of the Supreme Court of New York · Decided August 4, 1980
77 A.D.2d 865; 432 N.Y.S.2d 1010; 1980 N.Y. App. Div. LEXIS 12657
L. W. Manufacturing, Ltd. v. Gentile

Opinion of the Court

In an action, inter alia, to recover damages for fraud, defendants Gentile and Feuer appeal from (1) an order of the Supreme Court, Queens County, dated November 13, 1979, which granted plaintiff’s motion to vacate a prior order dismissing the complaint for failure *866to respond to appellants’ interrogatories and (2) a further order of the same court, dated November 28, 1979, which, based upon the order dated November 13, 1979, granted plaintiffs motion to vacate the judgment that had been entered on its default. Orders, reversed, on the law, with one bill of $50 costs and disbursements, and motions to vacate denied. Plaintiffs affidavit of merits is conclusory and lacks sufficient factual basis to substantiate its claim. Furthermore, plaintiff failed to offer a valid excuse for its apparently deliberate default. In the absence of either a showing of merit or a reasonable excuse for the delay, it was error for Special Term to permit plaintiff to proceed against the appellants (see Barasch v Micucci, 49 NY2d 594). Damiani, J. P., Mangano, Rabin and Margett, JJ., concur.

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