John G. Trautwein Fish Co. v. Gerland

Order unanimously reversed on the law with costs and motion denied. Memorandum: It was an abuse of discretion to grant defendant’s request to vacate a default judgment in the absence of an acceptable excuse for defendant’s default in answering and a showing of a meritorious defense (see, Dougherty v County of Nassau, 167 AD2d 989; General Elec. Tech. Servs. Co. v Perez, 156 AD2d 781; cf., Zent v Board of Educ., 174 AD2d 1047; Charlotte Lake Riv. Assocs. v American Ins. Co., 130 AD2d 947, lv denied 70 NY2d 605; Cox v Edmister, 122 AD2d 557, appeal dismissed 68 NY2d 900). The affidavit of 863 defendant’s attorney stating in bare conclusory language that a meritorious defense exists is of no probative value (see, Cooper Motor Leasing v Data Discount Ctr., 125 AD2d 454; Oversby v Linde Div., 121 AD2d 373). Moreover, the proposed answer, a general denial with no allegation of evidentiary facts, cannot be treated as an affidavit of merit (see, Oversby v Linde Div., supra; Klenk v Kent, 103 AD2d 1002, appeal dismissed 63 NY2d 953). Although defense counsel proffered the excuse that he had been retained only two days before the time to answer and that the volume of paperwork in his office precluded a timely answer, the record shows that the attorney served a notice of retainer and appearance more than a month before the time to answer expired and that an associate in his office represented to plaintiff’s attorney that there would be no problem in serving an answer within the allotted time. A proffered excuse lacking in candor should not be accepted, regardless of the minimal period of delay. Under the circumstances, Supreme Court should have denied defendant’s motion to vacate the default judgment. (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J. — Vacate Judgment.) Present — Pine, J. P., Balio, Lawton, Fallon and Davis, JJ.