Moss v. Cooley

¶1Motion for reargument granted, without costs, and decision dated October 28, 1982 rescinded, and order entered November 3, 1982 vacated (see Bernard v City School Dist., 96 AD2d 995). Upon reargument, order of Special Term entered November 16, 1981, which granted defendants’ motion to vacate a default judgment rendered in favor of plaintiff reversed, without costs, and motion by defendants denied. Upon review of the record in this case, we conclude that defendants failed to establish a meritorious defense and, therefore, Special Term abused its discretion in granting defendants’ motion to vacate the default (see Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Gray v B.R. Trucking Co., 59 NY2d 649). This determination is without prejudice to a motion for renewal by defendants at Special Term for consideration of an affidavit of merits. Sweeney, J. P., Kane, Main, Mikoll and Yesawich, Jr., JJ., concur.