| Brehm v Patton |
| 2008 NY Slip Op 07413 [55 AD3d 1362] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| William M. Brehm et al., Respondents, v Linda Patton et al., Defendants,and Manufacturers and Traders Trust Company, Appellant. |
—[*1] James A. Partacz, West Seneca, for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered June 7,2007. The order denied the motion of defendant Manufacturers and Traders Trust Company seeking,inter alia, to vacate a default judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Manufacturers and Traders Trust Company (defendant) appeals from an orderdenying its motion seeking, inter alia, to vacate the default judgment entered against it pursuant toCPLR 5015 (a) (1) and to permit it to serve and file an answer to the complaint. We conclude thatSupreme Court properly refused to vacate the default judgment inasmuch as defendant failed toestablish a reasonable excuse for its default in answering the complaint. "Although the determination ofwhat constitutes a reasonable excuse lies within the sound discretion of the trial court . . . ,the movant must submit supporting facts in evidentiary form sufficient to justify the default"(Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]; see Solorzano v Cucinelli Family, 1 AD3d887 [2003]). In support of its motion, defendant submitted the affidavits of several employees fromthe office of its in-house counsel. Those employees described defendant's method for receiving andprocessing legal documents and acknowledged that plaintiffs' summons and complaint was received bypersonal service and was forwarded to and reviewed by one of the attorneys in the office of in-housecounsel. Defendant, however, failed to provide an affidavit from that attorney or to otherwise explainwhy it could not obtain an affidavit from that attorney, and it appears on the record before us that noone in the office of in-house counsel thereafter had any contact with the pleadings. We thus concludethat defendant presented a "vague . . . claim of law office failure" (Fennell v Mason,204 AD2d 599, 599 [1994]), unsupported by any evidence from someone with personalknowledge of the events surrounding the default, and such a claim does not constitute a reasonableexcuse for the default (see Solorzano, 1 AD3d 887 [2003]; Jablonsky, 283 AD2d at554).[*2]
Inasmuch as defendant failed to establish a reasonable excusefor its default, we need not address the further contention of defendant that it demonstrated that it has ameritorious defense to the action (see Johnson v McFadden Ford, 278 AD2d 907 [2000]).Present—Scudder, P.J., Hurlbutt, Martoche and Lunn, JJ.