Brown v. Heller

Appeal from an order of the Supreme Court (Kane, J.), entered October 7, 1997 in Sullivan County, which granted plaintiffs motion to vacate a default judgment dismissing the complaint for failure to prosecute.

The only issue that need be considered on this appeal by defendants from Supreme Court’s order vacating the default judgment entered against plaintiff is whether plaintiff supported her motion with an adequate showing of a meritorious cause of action. In our view, Supreme Court correctly determined that the conclusory allegations of the complaint could not competently support a finding of merit (see, Peterson v Scandurra Trucking Co., 226 AD2d 691, 692) but erred in its reliance upon plaintiffs bill of particulars, which was verified by plaintiff’s attorney who had no personal knowledge of the facts (see, id.; Stokes v McKeithan, 172 AD2d 1077; cf., Pastore v Golub Corp., 184 AD2d 827, 828). Plaintiff having proffered no competent evidence to support a finding of merit, we conclude that Supreme Court abused its discretion in granting the motion.

Peters, Spain, Carpinello and Graffeo, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.