Beneficial Finance Co. of New York, Inc. v. Kramer

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 AD2d 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 823 defense to plaintiffs claim (Hurley v Reoux, 29 AD2d 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.