Worrell v. 845 East 136th Street, Inc.

129 A.D.2d 528, 514 N.Y.S.2d 380, 1987 N.Y. App. Div. LEXIS 45202

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1987
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Irwin M. Silbowitz, J.), entered April 16, 1986, denying defendant’s application to vacate a default judgment entered against it on December 10, 1985, unanimously affirmed, with costs and disbursements.

Although the motion court was in error in its conclusion that defendant had failed to set forth a meritorious defense, we nonetheless affirm the denial of defendant’s motion to vacate its default since, on the issue never reached—reasonable excuse—defendant’s proof was fatally inadequate. Only the attorney, lacking knowledge of the facts, denies receipt of the summons and lack of knowledge of the lawsuit until after entry of the judgment. That denial is a conclusory one. Moreover, the attorney’s cleverly drawn affidavit does not even state as fact that defendant’s former attorneys, who allegedly moved without notifying the Secretary of State, used their address as defendant’s mailing address when registering defendant with the Secretary of State. Thus, it is only suggested that the summons was forwarded to that address. What is revealing to us is that Millicent Nevins, defendant’s chief officer and sole shareholder, who addressed the merits issue in her affidavit, never denied receipt of the summons in behalf of the corporation. She simply ignored the issue. The fair inference from the attendant circumstances is that defendant was well aware of the pendency of the lawsuit and chose to ignore it. For these reasons, the motion was properly denied. Concur —Kupferman, J. P., Sullivan, Carro, Ellerin and Smith, JJ.