Inserra v. Porto 33 A.D.2d 1092

Order unanimously modified to provide that the denial of the motion to vacate the default, be with leave to renew upon proper papers, and as so modified, affirmed, with costs to respondent. Memorandum: Plaintiff has been granted a judgment in the amount of $3,591.50 in an action for malicious prosecution, following defendant’s default in answering or appearing in the action. Defendant thereafter movedlo vacate the judgment on the ground that the default was occasioned by the excusable neglect of his attorney, contending that an answer and notice of appearance had been prepared but that he had neglected to serve them upon plaintiff’s attorney. One of the grounds upon which Special Term denied the motion, was defendant’s failure to submit an affidavit of merit. It has long been the rule that to permit a defaulting party to prevail upon a motion to vacate, he must present facts showing a justifiable excuse for the default as well as a meritorious defense (Hurley v. Reoux, 29 A D 2d 789; Community Nat. Bank v. Mon-Ami Corp., 23 A D 2d 511). While it may be held under the peculiar circumstances here present, that the neglect of defendant’s attorney was excusable (cf. Wall v. Bennett, 33 A D 2d 827; Becker Wrecking & Salvage Corp. v. Pinebrook Constr. Corp., 22 A D 2d 976), we are' unable to grant the requested relief since no affidavit of merit has been supplied (Roach v. County of Albany, 30 A D 2d 885, affd. on rearg., 31 A D 2d 681; Monette v. Bonsall, 29 A D 2d 839). (Appeal from order of Oneida Special Term denying motion to open default judgment.) Present — Goldman, P. J., Del Vecchio, Gabrielli, Moule and Bastow, JJ.