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Beneficial Finance Co. of New York v. Kramer

Appellate Division of the Supreme Court of New York, Second Department
Jun 2, 1975
48 A.D.2d 822 (N.Y. App. Div. 1975)

Opinion

June 2, 1975


In an action on a promissory note, defendants appeal from an order of the Supreme Court, Nassau County, dated June 13, 1974, which denied their motion to vacate a default judgment. Order reversed, with $20 costs and disbursements, and motion granted. A motion to vacate a default judgment is addressed to the discretion of the court. To succeed, the movant must first establish that the entry of judgment or of an order establishing the default occurred as the result of an excusable default (CPLR 5015, subd [a], par 1; Krebs v Raborg, 30 A.D.2d 520). In the case at bar, defendants failed to appear at the trial because a court clerk misinformed them as to the trial date. Such default by defendants was not deliberate and was therefore excusable. In order to open the default, defendants must also establish the existence of a meritorious defense to plaintiff's claim (Hurley v Reoux, 29 A.D.2d 789). Defendants have asserted discharge in bankruptcy as an affirmative defense. In our opinion, they have shown, by affidavit and documentation, a prima facie meritorious defense sufficient to entitle them to a trial of the issues. Gulotta, P.J., Rabin, Martuscello, Latham and Cohalan, JJ., concur.


Summaries of

Beneficial Finance Co. of New York v. Kramer

Appellate Division of the Supreme Court of New York, Second Department
Jun 2, 1975
48 A.D.2d 822 (N.Y. App. Div. 1975)
Case details for

Beneficial Finance Co. of New York v. Kramer

Case Details

Full title:BENEFICIAL FINANCE COMPANY OF NEW YORK, INC., Respondent, v. HENRY KRAMER…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 2, 1975

Citations

48 A.D.2d 822 (N.Y. App. Div. 1975)

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