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Cavalla v. Ernest F. Elliot, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Feb 22, 1982
86 A.D.2d 884 (N.Y. App. Div. 1982)

Opinion

February 22, 1982


In an action to recover damages for breach of contract, defendant Ernest F. Elliot appeals from an order of the Supreme Court, Dutchess County (Quinn, J.), dated April 9, 1980, which denied his motion to vacate a default judgment, entered after inquest upon his failure to appear at trial. Order affirmed, with $50 costs and disbursements. Under the circumstances of this case, Special Term erred in finding that defendant Elliot failed to establish a meritorious defense. Where an individual attempts to guarantee the liability of a corporation, his personal liability for breach of contract does not attach unless he subscribes to the contract in his individual capacity (General Obligations Law, § 5-701; Steinberg v. Universal Machinenfabrik GMBH, 18 N.Y.2d 943). However, a careful search of the record reveals that there was no valid excuse for the individual defendant's default. His allegation, inter alia, that his nonappearance was occasioned by his wife's failure to notify him of the impending trial, is insufficient to constitute excusable default ( Walker v. Walker, 38 A.D.2d 720). Titone, J.P., Mangano, Weinstein and O'Connor, JJ., concur.


Summaries of

Cavalla v. Ernest F. Elliot, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Feb 22, 1982
86 A.D.2d 884 (N.Y. App. Div. 1982)
Case details for

Cavalla v. Ernest F. Elliot, Inc.

Case Details

Full title:PETER CAVALLA, Respondent, v. ERNEST F. ELLIOT, INC., Defendant, and…

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

Date published: Feb 22, 1982

Citations

86 A.D.2d 884 (N.Y. App. Div. 1982)

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