Escobar v Koeppel Volkswagen, Inc. Used Cars

[*1] Escobar v Koeppel Volkswagen, Inc. Used Cars 2005 NY Slip Op 51889(U) [10 Misc 3d 127(A)] Decided on November 4, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 4, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: November 4, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
2005-404 Q C

Manuel Escobar, Respondent,

against

Koeppel Volkswagen, Inc. Used Cars, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered December 8, 2004. The order denied defendant's motion to vacate a default judgment, entered September 21, 2004, which awarded plaintiff the principal sum of $3,000.

Order affirmed without costs.

A party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense (CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; General Elec. Capital Auto Lease v Terzi, 232 AD2d 449, 450 [1996]). While the court may, in the exercise of discretion, accept a claim of law office failure as an excuse (CPLR 2005), counsel "must submit supporting facts in evidentiary form sufficient to justify the default" (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) via an affirmation containing "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]; Amaze Med. Supply Inc. v Liberty Mut. Ins. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50083[U] [App Term, 2d & 11th Jud Dists]).

The affirmation of counsel, that his office "failed to properly follow for the adjourned Small Claims Trial date, and accordingly failed to appear in Court on July 15, 2004" lacked the requisite "detailed explanation" of the reason for such failure (King's Med. Supply Inc. v Response Ins. Co., 5 Misc 3d 135[A], 2004 NY Slip Op 51493[U] [App Term, 2d & 11th Jud Dists]). Rather, it is precisely the sort of conclusory affirmation, amounting to little more than a confession of neglect, which the courts consistently reject as a basis to vacate a default judgment [*2](e.g. Solomon v Ramlall, 18 AD3d 461 [2005] [plaintiff's "undetailed and uncorroborated" excuse for its law office failure insufficient]; Juarbe v City of New York, 303 AD2d 462 [2003] [counsel's bare explanation that an attorney "was late for a motion calendar call" was "conclusory and devoid of any detailed factual allegations, and thus did not constitute a reasonable excuse"]; see also Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d at 554; Gourdet v Hershfeld, 277 AD2d 422 [2000]). While the assertion of a failure to "follow" proceedings may permit an inference of the denial of wilfulness, said denial is of little weight given that counsel failed to explain the reasons for all but one of the pre-default adjournments it requested or its four-month delay in moving to vacate the default judgment. It is noted that counsel failed to appear on the return date of its vacatur motion, citing a religious holiday conflict, without explanation why it failed to arrange for the substitution of counsel.

Pesce, P.J. and Weston Patterson, J., concur.

Golia, J., taking no part.
Decision Date: November 04, 2005