Court Refuses to Open up Adversary’s Default
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK: PART 30
Index No.: 47977/05
Cal. Nos.: 7
Submission Date: 717106
AUM A&C LTD. and ANTHONY W. PALMIER], Decision and Order
Arthur F. Engoron, Judge
In compliance with CPLR 2219(a), this Court states that the following papers, numbered 1 to 3, were used on this motion for a default judgment:
Courts generally, and this Court in particular, prefer that cases be litigated on their merits. However, there are certain basic parameters that a party seeking to avoid a default judgment must satisfy:
(1) that the defaulting party have a reasonable excuse for the default; and (2) that the defaulting party, by affidavit of someone with knowledge, demonstrate a meritorious claim or defense. In the present matter, the defendant has failed to posit a reasonable excuse.
Defendant’s excuse for its “delay” (of eleven months) in responding to the summons and complaint is that it didn’t believe it economically viable to do so. Defendant didn’t “delay” in answering, it simply chose not to do so. The fact that plaintiffs motion for a default judgment brought about an apparent change of heart on defendant’s part does not excuse the fact that defendant willingly and knowingly opted to ignore the summons and complaint, and not put in an answer. Even now in its opposition to plaintiffs motion, defendant fails to include a proposed answer, or put forth any defenses. Defendant has failed to do even the bare minimum to demonstrate that it has a meritorious defense to this action. A vague reference to the answer and defenses of the co-defendant (which are not spelled out, listed, or even attached as an exhibit does nothing to shed any light on what defenses this defendant believes it has. Moreover, there is no affidavit from a person with knowledge as to defendant’s meritorious (or otherwise) defenses to this action.
Based on the foregoing, plaintiffs motion for a default judgment is granted and plaintiff may proceed to inquest upon the filing of a notice of inquest along with a of this order with notice of entry, and the payment of all necessary fees.
Dated: September 2006
I Arthur F. Engoron, I.C.c.