Source: New York Supreme Court, Appellate Division
Date: 1964-12-03
Jurisdiction: New York
Citation: 22 A.D.2d 863
Opinion
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.