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• Title: Constance Monette v. Charles Bonsall Et Al.
• Author : Supreme Court of New York
• Release Date : January 22, 1968
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

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contd Order unanimously modified and as modified affirmed, with costs to plaintiff, and matter remitted to Supreme Court, Erie County, for further proceedings all in accordance with the following Memorandum: The conduct of defendants' representatives in this action does not merit opening the default; but it appears that the amount awarded for personal injuries included in the judgment may be excessive, and in the interest of justice we deem it proper that such damages be assessed at a hearing at which defendants may defend on that issue. The accident happened on July 3, 1964, and the summons and complaint were served on September 15, 1965. Defendants turned these papers over to their insurance carrier which, so far as appears herein, never retained an attorney to represent it or the defendants in the case until after the default judgment was entered over one year later. Moreover, the procedure on this motion to open the default and vacate the judgment has been highly irregular. The motion is supported only by an affidavit by one of the insurance carrier's (and hence, the defendants') attorneys who have appeared in the case for the first time after entry of the default judgment. Said affiant does not state how he knows any of the ""facts"" which he sets forth. Furthermore, no attempt is made to show how the accident occurred or what defense there is to the action. The attorney merely makes the bald conclusory statement that the ""defendants have a valid defense to the complaint."" Thus, the motion is unsupported by a required affidavit of merits, and, as far as liability is concerned, should therefore have been denied forthwith. (Levine v. Fal-Bar Argentinian Corner Rest., 18 A.D.2d 611; and see Weeks v. Jankowitz, 23 A.D.2d 549; Fagin v. Grossinger S & H, 20 A.D.2d 623; Keating v. Smith, 20 A.D.2d 141; Sortino v. Fisher, 20 A.D.2d 25, 31.) It is noted further that, although the affidavit in support of the motion asserts

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