National Commercial Bank & Trust Co. v. Ross

40 A.D.2d 1046, 338 N.Y.S.2d 758, 1972 N.Y. App. Div. LEXIS 3092

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1972
• Status: Published

Opinion

Appeal from an order of the 'Supreme Court at Special Term, entered March 27,1972 in Albany County, which denied a motion by defendant to open a default judgment and serve an answer in the action. Appellant’s bare statement that he was not personally served with the summons does not rise to the status of excusable default since he does not contend that the method of substituted service was not proper. Nor is there any allegation that the judgment he seeks to reopen was fradulently obtained. There was, moreover, no contention of fraud by respondent in the procurement of appellant’s promissory note, default in payment of which was the basis for the action leading to the judgment. Appellant is not, as Special Term correctly noted, divested of any independent cause of action against respondent. Accordingly, it cannot be said that Special 'Term abused its discretion in denying the motion. Order affirmed, without costs. Staley, Jr., J. P., Greenblott, Cooke, Sweeney and Reynolds, JJ., concur.