Heller v. Ward

In an action to recover damages for fraud and for conversion, the appeal is from so much of an order as opened respondents’ default and permitted them to answer on terms, within a stated period. Order modified by striking therefrom everything following the word “ hereby ” in the second ordering paragraph and by substituting therefor the word “denied”. As so modified, order insofar as appealed from affirmed, with $10 costs and disbursements to appellant, without prejudice, if respondents be so advised, to a renewal of the motion upon proper papers. The facts stated in the moving papers are insufficient to show that the respondents’ default was due to mistake, inadvertence, surprise or excusable neglect (cf. Eastern Dist. Realty Co. v. Kahane, 277 App. Div. 784; Civ. Prac. Act, § 108). Furthermore, there is no factual showing that the respondents have a meritorious defense, nor has any proposed answer been submitted. Under the circumstances, it was an improvident exercise of discretion, upon this record, to grant the motion (Horwitz v. Gardner, 283 App. Div. 780; La Vin v. La Vin, 279 App. Div. 873). Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.