Opinion
November 13, 1990
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the order is affirmed, without costs or disbursements.
In support of its motion to open its default in answering, the defendant presented a reasonable excuse for its delay and an affidavit of merit by one of its executive vice-presidents. The affidavit of merit primarily alleged legal defenses such as res judicata, based upon settlement of a 1977 suit by the plaintiff on similar facts, and the bar of the disclaimer and merger clauses contained in the parties' 1976 realty contract. Although a subsequent pretrial deposition of this same executive vice-president cast some doubt upon his familiarity with the facts of this case, to which familiarity he had earlier attested, we agree with the Supreme Court that this new information did not establish perjury or warrant vacatur of the relief originally granted to the defendant.
We note, however, that since the appendix to the defendant's brief contains documents dehors the record, the defendant is denied costs on appeal. Thompson, J.P., Lawrence, Eiber and Ritter, JJ., concur.