Opinion
June 14, 1976
Appeal by defendant from an order of the Supreme Court, Queens County, dated December 26, 1975, which denied his motion inter alia to set aside and vacate a certain judgment taken by confession. Order reversed, without costs or disbursements, motion granted, and action remanded to Special Term for further proceedings not inconsistent herewith. The issues of whether the confession of judgment was entered in breach of the escrow agreement, whether the statement attached was signed and attached without authorization and whether it complied with CPLR 3218 merit a trial. As we held in Rae v Kestenberg ( 23 A.D.2d 565, 566, affd 16 N.Y.2d 1023) and, as is summarized in Weinstein-Korn-Miller (NY Civ Prac, vol 4, par 3218.04 [Dec. 1975 Supp, p 102]): "Confessions of judgment are always carefully scrutinized and, in judging them, a liberal attitude should be assumed in favor of judgment debtor * * * Confession of judgment entered without authority may be vacated on motion." Hopkins, Acting P.J., Margett and Hawkins, JJ., concur; Damiani and Titone, JJ., dissent and vote to affirm the order, with the following memorandum: Defendant may not challenge the sufficiency of the affidavit executed by him (see Neusbaum v Kein, 24 N.Y. 325; Magalhaes v Magalhaes, 254 App. Div. 880; County Nat. Bank v Vogt, 28 A.D.2d 793, affd 21 N.Y.2d 800; Giryluk v Giryluk, 30 A.D.2d 22, affd 23 N.Y.2d 894; 4 Weinstein-Korn-Miller, N Y Civ Prac, par 3218.04). Moreover, we find that the conditions precedent to the filing and entry of the judgment have been satisfied.