Di Carlo v. Bravo Tours, Inc.

Apr 6, 1987
Versions:129 A.D.2d 552
514 N.Y.S.2d 47
1987 N.Y. App. Div. LEXIS 45222

In an action, inter alia, to recover damages for breach of contract, the defendant Spantax Airlines appeals from an order of the Supreme Court, Putnam County (Owen, J.), entered May 28, 1986, which denied its motion to vacate a default judgment of the same court entered October 28, 1985 against it.

Ordered that the order is reversed, with costs, the motion is granted, the default judgment is vacated and the plaintiffs’ complaint is dismissed insofar as it is asserted against the defendant Spantax Airlines.

The plaintiffs failed to take proceedings for the entry of a judgment within one year after the default of the defendant Spantax Airlines and there is no excuse provided for this failure. Furthermore, there was no demonstrated merit to the plaintiffs’ action as against Spantax Airlines. Therefore, the complaint should be dismissed insofar as it is asserted against Spantax Airlines (see, CPLR 3215 [c]; Baldwin v St. Clare’s Hosp., 63 AD2d 761). Brown, J. P., Niehoff, Eiber and Sullivan, JJ., concur.