On December 3, 2024, the First Department issued a decision in Kanner v. Westchester Med. Group, P.L.L.C., 2024 NY Slip Op. 06009, holding that a factual affidavit supporting a motion to vacate a default judgment was unnecessary when a meritorious defense was clear on the face of documentary evidence submitted in support of the motion, explaining:
Defendant also demonstrated a meritorious defense via submission of agreements demonstrating a clear and unambiguous intention to arbitrate the subject dispute.
Although, in general, in order to demonstrate a meritorious defense, a party must submit an affidavit from an individual with knowledge of the facts, the absence of such an affidavit is not dispositive where, as here, the defense is self-evident on the face of conclusive documentary evidence. Such documentary evidence may properly be submitted via attorney affirmation. Plaintiff waived any challenge to the authenticity or admissibility of these agreements by failing to raise it before the motion court.
(Internal quotations and citations omitted).