James v. Hoffman

Feb 22, 1990
Versions:158 A.D.2d 398
551 N.Y.S.2d 519
1990 N.Y. App. Div. LEXIS 1871

Supreme Court erred in granting plaintiffs-respondents’ motion to vacate the default judgment entered against them after they failed on several occasions to appear in opposition to defendants-appellants’ motion for summary judgment. Respondents’ motion to vacate was supported only by an affirmation of counsel which fails to provide either a valid excuse for the default or to show that respondents have a meritorious claim (Tat Sang Kwong v Budge-Wood Laundry Serv., 97 AD2d 691 [1st Dept 1983]). Although respondents’ counsel obtained an adjournment of the summry judgment motion, he failed to appear on the adjourned date before the matter was reassigned to an IAS Part. Counsel also failed to monitor the progress of the motion. Notices that the case had been reassigned and placed on the calendar in an IAS Part, and that an order granting the motion had been entered, were all duly published in the New York Journal. Even if such law office failure was sufficient to excuse the neglect of this action, respondents have failed to establish that they have a meritorious claim.

The affirmation in support of the motion to vacate contains only conclusory assertions by counsel who has no personal knowledge of the facts regarding respondents’ claims for intentional infliction of emotional distress, prima facie tort and harassment. Thus, counsel’s affirmation falls short of providing the required evidentiary facts, in admissible form, which would establish that the defaulting party has a meritorious claim (Matter of State of New York v Wiley, 117 AD2d 856 [3d Dept 1986]; Wasserman v Manoco Co., 100 AD2d 758 [1st Dept 1984]; Becker Wrecking & Salvage Corp. v Pinebrook Constr. Corp., 22 AD2d 976 [3d Dept 1964]). Supreme Court therefore abused its discretion in granting the motion to vacate the default judgment against respondents. Concur—Murphy, P. J., Asch, Kassal and Rosenberger, JJ.