Evans v. Conley

Memorandum: Defendant corporation moved to vacate a default judgment entered against it in an action brought by the plaintiff to recover damages for personal 982 injuries received as a result of an alleged attack by a patron in defendant’s bar. Special Term vacated the judgment finding justifiable excuse for the default and a meritorious defense. We reverse and hold that defendant failed to establish by competent evidence a justifiable excuse. By appearing pro se, defendant’s president violated CPLR 321 and her appearance was a nullity (Matter of Lefkowitz v Therapeutic Hypnosis, 52 AD2d 1017). While defendant’s failure to serve an answer to plaintiff’s amended complaint may under the circumstances be understandable, no justifiable excuse was given why defendant again defaulted by not appearing at the inquest after notice of the hearing had been timely and properly served upon it by registered mail, return receipt requested (Passalacqua v Banat, 103 AD2d 769, appeal dismissed 63 NY2d 770; Rondout Val. Pub. Co. v AM Intl., 93 AD2d 912, 913). In view of our determination, we need not address the question of whether defendant established the existence of a meritorious defense. All concur, except Callahan, J. P., and Schnepp, J., who dissent and vote to affirm. Appeal from order of Supreme Court, Oneida County, Sullivan, J. — vacate default judgment.) Present — Callahan, J. P., Doerr, Boomer, Lawton and Schnepp, JJ.