Empire Chevrolet Sales Corp. v. Spallone

Apr 21, 2003
Versions:304 A.D.2d 708
757 N.Y.S.2d 792

In an action, inter alia, to set aside a fraudulent conveyance, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated October 23, 2001, as granted that branch of the plaintiff’s motion which was, in effect, to vacate the plaintiff’s default in appearing at a court-ordered status conference and restore the action to the trial calendar.

Ordered that the order is affirmed insofar as appealed from, with costs.

We agree with the Supreme Court that the affidavits of the plaintiff’s attorney, who had personal knowledge of the facts regarding his failure to appear at a conference, were sufficient to establish a reasonable excuse for default — that he did not *709receive notice of the conference (see Bloom v Primus Automotive Fin. Servs., 292 AD2d 410 [2002]). In addition, the documentary evidence submitted in support of the plaintiffs motion, which included the defendant’s deposition testimony, established the merits of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The defendant’s remaining contentions are without merit. Feuerstein, J.P., Smith, H. Miller and Townes, JJ., concur.