Meeker v. Moore

Apr 9, 1990
Versions:160 A.D.2d 780
555 N.Y.S.2d 612
1990 N.Y. App. Div. LEXIS 4209

an action to recover damages, inter alia, for intentional infliction of emotional distress and fraud, the plaintiffs appeal from an order of the Supreme Court, Suffolk *781County (Gowan, J.), dated September 14, 1988, which denied their motion pursuant to CPLR 3215 (a) for entry of a default judgment against the defendant based upon his failure to serve an answer to their complaint, and, sua sponte, extended his time to serve an answer.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for determination of the plaintiffs’ damages and entry of an appropriate judgment.

In order to be relieved from his default in answering the complaint, the defendant was required to submit an acceptable excuse for his default as well as an affidavit indicating that he had a meritorious defense to the action (see, Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693; Pansey v RKO Gen., 102 AD2d 762). The defendant failed to satisfy either of these requirements, and there is nothing in the record which indicates that there is any merit to his position (cf., Sanders & Assocs. v Hague Dev. Corp., 100 AD2d 964).

We further note that, contrary to the defendant’s argument, CPLR 3020 (b) is clearly inapplicable to the complaint herein, and therefore the defendant was not entitled to completely ignore the complaint because it was unverified. Mangano, P. J., Bracken, Kooper and Balletta, JJ., concur.