Voss Dental Lab, Inc. v. Surgitex, Inc.

Dec 23, 1994
Versions:210 A.D.2d 985
621 N.Y.S.2d 1000

—Order unanimously reversed on the law with costs, motion denied and default judgment against Gregory Moran reinstated. Memorandum: Supreme Court improvidently exercised its discretion in granting in part defendants’ motion and vacating the default judgment against defendant Gregory Moran (see, General Elec. Tech. Servs. Co. v Perez, 156 AD2d 781, 783). A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for his delay in appearing and answering the complaint and a meritorious defense to the action (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141; Klenk v Kent, 103 AD2d 1002, appeal dismissed 63 NY2d 953). We conclude that defendants failed to meet that burden. The conclusory assertion of defendant Moran that he was not acting in an individual capacity and the general denial of the allegations in the complaint are insufficient to establish a meritorious defense. Furthermore, the contention that defendant Moran misunderstood the law and made an erroneous assumption regarding the need to defend or the time periods involved is an insufficient excuse to permit vacatur of the judgment entered against him (see, General Elec. Tech. Servs. Co. v Perez, supra, at 783; Smallridge v Macalaster Bicknell Co., 134 AD2d 880; Awad v Severino, 122 AD2d 242; Passalacqua v Banat, 103 AD2d 769, appeal dismissed 63 NY2d 770). (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Vacate Default Judgment.) Present— Denman, P. J., Green, Balio, Callahan and Boehm, JJ.