Knox v. Lincoln Savings Bank

Appellate Division of the Supreme Court of New York

Knox v. Lincoln Savings Bank

84 A.D.2d 808, 444 N.Y.S.2d 142, 1981 N.Y. App. Div. LEXIS 16018

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 23, 1981

StatusPublished

This text of 84 A.D.2d 808 (Knox v. Lincoln Savings Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Knox v. Lincoln Savings Bank, 84 A.D.2d 808, 444 N.Y.S.2d 142, 1981 N.Y. App. Div. LEXIS 16018 (N.Y. Ct. App. 1981).

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Opinion

In an action to recover the proceeds of several bank accounts, plaintiff appeals from an order of the Supreme Court, Kings County (Bellard, J.), dated May 6, 1981, which, inter alia, (1) granted the motion of defendant Joseph H. Knox to vacate a default judgment entered against him and (2) granted defendant Lincoln Savings Bank’s cross motion for an order directing the return of a teller’s check issued to plaintiff and his attorneys. Order reversed, on the law, without costs or disbursements, and the motion and cross motion are denied. To vacate a default judgment, a defendant must demonstrate a reasonable excuse for the default and make a prima facie showing of legal merit. Law office failure, as a matter of law, is an insufficient excuse for the purpose of supporting a motion to vacate a default judgment (see Barasch v Micucci, 49 NY2d 594; Bruno v Village of Port Chester, 77 AD2d 580). The excuse proffered by defendant Knox is that the summons and complaint were “apparently misplaced in transmission.” This is a clear example of law office failure and, as such, cannot serve as the basis for vacating the default judgment. Accordingly, Trial Term abused its discretion in vacating the judgment. Inasmuch as the judgment is not to be vacated, the cross motion must be denied. Hopkins, J.P., Damiani, Titone and Rabin, JJ., concur.

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In an action to recover the proceeds of several bank accounts, plaintiff appeals from an order of the Supreme Court, Kings County (Bellard, J.), dated May 6, 1981, which, inter alia, (1) granted the motion of defendant Joseph H. Knox to vacate a default judgment entered against him and (2) granted defendant Lincoln Savings Bank’s cross motion for an order directing the return of a teller’s check issued to plaintiff and his attorneys. Order reversed, on the law, without costs or disbursements, and the motion and cross motion are denied. To vacate a default judgment, a defendant must demonstrate a reasonable excuse for the default and make a prima facie showing of legal merit. Law office failure, as a matter of law, is an insufficient excuse for the purpose of supporting a motion to vacate a default judgment (see Barasch v Micucci, 49 NY2d 594; Bruno v Village of Port Chester, 77 AD2d 580). The excuse proffered by defendant Knox is that the summons and complaint were “apparently misplaced in transmission.” This is a clear example of law office failure and, as such, cannot serve as the basis for vacating the default judgment. Accordingly, Trial Term abused its discretion in vacating the judgment. Inasmuch as the judgment is not to be vacated, the cross motion must be denied. Hopkins, J.P., Damiani, Titone and Rabin, JJ., concur.

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Bluebook (online)

84 A.D.2d 808, 444 N.Y.S.2d 142, 1981 N.Y. App. Div. LEXIS 16018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knox-v-lincoln-savings-bank-nyappdiv-1981.

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