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Meritorious defense not neededApril 14, 2018

Naber Elec. v Triton Structural Concrete, Inc., 2018 NY Slip Op 02562 (1st Dept. 2018)

“Although the affidavit of merit provided by defendants’ executive lacked any detail concerning their potential defenses to plaintiffs’ claims for payment for work performed on three subcontracts, an affidavit of merit is “not essential to the relief sought” by defendants before entry of a default order or judgment (DeMarco v Wyndham Intl., 299 AD2d 209, 209 [1st Dept 2002]; see Nason v Fisher, 309 AD2d 526 [1st Dept 2003])”

The Court of Appeals should resolve this conflict.  The other Departments hold that a meritorious defense is needed.  The Second Circuit on construing Rule 55 after a clerks marking of default holds the same.  Also, the way around this is to enter an ex-parte judgment on liability, which is something that downstate Courts frown upon unless it is a sum certain matter.

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