Fennell v. Mason

• Decision Date: 23 May 1994
• Citation: 204 A.D.2d 599,612 N.Y.S.2d 416
• Parties: Louis FENNELL, Respondent, v. C. Vernon MASON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 416

612 N.Y.S.2d 416

204 A.D.2d 599

Louis FENNELL, Respondent, v.C. Vernon MASON, Appellant.

Supreme Court, Appellate Division Second Department.

May 23, 1994.

Harry Kresky, New York City, for appellant.

Darrin Berger, Huntington, for respondent.

Before SULLIVAN, J.P., and ROSENBLATT, PIZZUTO and ALTMAN, JJ.

MEMORANDUM BY THE COURT

In an action to recover damages for legal malpractice, the defendant appeals from (1) an order of the Supreme Court, Dutchess County(Beisner, J.), entered March 12, 1992, which denied his motion to vacate a default judgment, and (2) an order of the same court, entered June 23, 1992, which denied his motion for leave to renew.

ORDERED that the orders are affirmed, with one bill of costs.

Contrary to the defendant's contention, the Supreme Court properly denied his motion to vacate his default in responding to the summons with notice.The motion to vacate could not be made pursuant to CPLR 317, inasmuch as the defendant did not allege, nor does the record establish, that he"did not personally receive notice of the summons in time to defend"(CPLR 317;see generally, DiLorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116;Getz v. Stuyvesant Manor, 194 A.D.2d 589, 599 N.Y.S.2d 988;Essex Credit Corp. v. Tarantini Assocs., 179 A.D.2d 973, 579 N.Y.S.2d 235).Since the defendant's motion was properly treated as one to vacate a default pursuant to CPLR 5015(a)(1), he was required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see, DiLorenzo, Inc. v. Dutton Lbr. Co., supra;People v. Scudds, 195 A.D.2d 778, 600 N.Y.S.2d 379;Aponte v. Raychuk, 172 A.D.2d 280, 568 N.Y.S.2d 735, affd78 N.Y.2d 992, 575 N.Y.S.2d 272, 580 N.E.2d 758;Vierya v. Briggs & Stratton Corp., 166 A.D.2d 645, 561 N.Y.S.2d 74).However, the defendant's vague and unsubstantiated claim of law office failure did not constitute a reasonable excuse (see, Matter of People v. New Woman, 197 A.D.2d 525, 602 N.Y.S.2d 419;Morris v. Metropolitan Transp. Auth., 191 A.D.2d 682, 595 N.Y.S.2d 539;Forum Ins. Co. v. Judd, 191 A.D.2d 230, 594 N.Y.S.2d 250;Donovan v. Getty Petroleum, 174 A.D.2d 706, 571 N.Y.S.2d 556;American Sigol Corp. v. Zicherman, 166 A.D.2d 628, 561 N.Y.S.2d 55).Furthermore, the defendant's moving papers failed to establish the existence of a meritorious defense to the claim that he entered into an unauthorized settlement on behalf of the plaintiff in a previous action (see, Fennell v. TLB Kent Company, 865 F.2d 498;see generally, Forum Ins. Co. v. Judd, supra;Vierya v. Briggs & Stratton Corp., supra).

Similarly unavailing is the defendant's claim that the Supreme Court should have granted his motion for leave to renew (see, CPLR 2221, 5015[a][2].As the Supreme Court noted, the material submitted on the motion to renew still failed to...