Silveri v. Laufer

• Decision Date: 13 January 1992
• Citation: 179 A.D.2d 633,579 N.Y.S.2d 887
• Parties: Joseph SILVERI, Respondent, v. Gerald S. LAUFER, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 887

579 N.Y.S.2d 887

179 A.D.2d 633

Joseph SILVERI, Respondent, v. Gerald S. LAUFER, et al., Appellants.

Supreme Court of New York, Appellate Division Second Department.

January 13, 1992

Harvey Fox, Carle Place, for appellants.

In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Nassau County (Christ, J.), entered May 25, 1989, which denied their motion to vacate a judgment against them entered upon their default. ORDERED that the order is affirmed, without costs or disbursements. In order to vacate the default judgment against them, the defendants were required to establish a valid excuse for the default and a meritorious defense to the action ( see, Association for Children With Learning Disabilities, Nassau Ch., v. Zafar, 115 A.D.2d 580, 496 N.Y.S.2d 472; see also, CPLR 5015[a][1]. The determination of what is an excusable default is left to the sound discretion of the trial court ( see, Ehmer v. Modernismo Pub., 120 A.D.2d 483, 484, 501 N.Y.S.2d 471), the exercise of which will not generally be disturbed if supported by the record (see, Machnick Bldrs. Ltd. v. Grand Union Co., 52 A.D.2d 655, 381 N.Y.S.2d 551). Under the circumstances of this case, the denial of the defendants' motion to vacate the default judgment did not constitute an improvident exercise of discretion ( see, Formichella v. Formichella, 134 A.D.2d 481, 521 N.Y.S.2d 265). The defendants failed to provide a reasonable excuse for their default ( see, Levy v. Blue Cross & Blue Shield of Greater N.Y., 124 A.D.2d 900, 508 N.Y.S.2d 660; McCarthy v. Chef Italia, 105 A.D.2d 992, 482 N.Y.S.2d 143; Union Nat. Bank v. O'Donnell,101 A.D.2d 676, 475 N.Y.S.2d 573), and their proposed defense was without merit. As the defendants correctly note, parol evidence may be used to establish the existence of a condition precedent to the legal effectiveness of a written contract, provided the condition does not contradict the express terms of the writing ( see, Hicks v. Bush, 10 N.Y.2d 488, 225 N.Y.S.2d 34, 180 N.E.2d 425; Richardson, Evidence § 613 [Prince 10th ed]. However, in the instant case, the oral understanding alleged by the defendants contradicts the terms of the contract of sale and, in particular, Paragraph 26 of the rider to the contract. Thus, evidence of the purported oral understanding is barred by the parol evidence rule ( see, Alicanto v. Woolverton, 142 A.D.2d 703, 531 N.Y.S.2d 296; Fourteen Sharot Place Realty...