Grossberg Tudanger Advertising, Inc. v. Weinreb

• Decision Date: 19 November 1991
• Citation: Grossberg Tudanger Advertising, Inc. v. Weinreb, 576 N.Y.S.2d 235, 177 A.D.2d 377 (N.Y. App. Div. 1991)
• Parties: GROSSBERG TUDANGER ADVERTISING, INC., Plaintiff-Appellant, v. Robert Lars WEINREB, Chamba Weinreb, Joseph Weinreb, Quality Cases, Ltd., Tenba, Inc., and "John Jones", Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 235

576 N.Y.S.2d 235

177 A.D.2d 377

GROSSBERG TUDANGER ADVERTISING, INC., Plaintiff-Appellant, v. Robert Lars WEINREB, Chamba Weinreb, Joseph Weinreb, Quality Cases, Ltd., Tenba, Inc., and "John Jones" Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Nov. 19, 1991.

Before SULLIVAN, J.P., and WALLACH, KUPFERMAN, ROSS and ASCH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Edward Greenfield, J.), entered August 24, 1990, which denied plaintiff's motion to vacate a default judgment pursuant to CPLR 5015 is unanimously reversed, on the law and facts, the motion to vacate the default granted and the complaint reinstated, without costs or disbursements.

Plaintiff performed advertising services for defendant Tenba, Inc., and obtained a judgment against Tenba for payment of monies due for these services. Thereafter, plaintiff commenced this action alleging fraudulent transfer of Tenba's assets to defendant Quality Cases, Ltd.

Defendants moved, inter alia, pursuant to CPLR 3211(a)(5) and (7) to dismiss the verified complaint. A stipulation was entered into by the parties to adjourn the motion to January 23, 1990 and defendants, pursuant to the agreement, appeared to file the stipulation. The IAS court informed the attorney for defendants on January 16, 1990 that the motion for adjournment was marked "final" but apparently plaintiff's counsel was not informed of this. Consequently, when counsel for plaintiff requested an adjournment on January 23, the court denied the request and sua sponte entered a default. Thereafter, the IAS court denied plaintiff's motion to vacate this default finding plaintiff failed to provide an affidavit of an individual with personal knowledge of the facts.

A prerequisite of an application to vacate a default is an affidavit of merit containing evidentiary facts which are attested to by one with personal knowledge of those facts (see, Barasch v. Micucci, 49 N.Y.2d 594, 599, 427 N.Y.S.2d 732, 404 N.E.2d 1275). However, it has also been noted that:

The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide "evidentiary proof in admissible form" e.g., documents, transcripts. Such an affidavit or affirmation could also be accepted with respect to admissions of a party made in the attorney's presence. (Zuckerman v. New York City, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The moving affirmation here was by Keven Danow, Esq. who had personal knowledge of the facts acquired by him at supplementary proceedings in the prior action and who also used his affirmation as a vehicle to submit documents which also provided "evidentiary proof in admissible form". Therefore, the attorney's affirmation herein should have been considered by the IAS court.

In addition, plaintiff demonstrated that its default was excusable. Plaintiff was not informed the last adjournment was "final" and counsel could not locate an exhibit on that return date. Pursuant to CPLR 2005, law office failure does not preclude a court from exercising its discretion to excuse, delay, or default. In the exercise of our discretion we consider such law office failure as an adequate excuse for such default under the circumstances.

Further, plaintiff adequately...