Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

Arthur J. ROCK, Respondent, v. Jeffrey M. SCHWARTZ, Appellant.

Decided: November 24, 1997

Before MANGANO, P.J., and COPERTINO, KRAUSMAN and LUCIANO, JJ. Gabor & Gabor, Garden City (David G. Gabor and Samuel D. Carucci, of counsel), for appellant. Sanders, Sanders, Block & Woycik, P.C., Mineola (Martin Block, of counsel;  Andrea B. Weiss, on the brief), for respondent.

In an action to recover damages for misconduct of a notary public pursuant to Executive Law § 135, the defendant appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated December 11, 1996, which denied his motion to (1) vacate his default in appearing for trial, and (2) restore the action to the trial calendar.

ORDERED that the order is affirmed, with costs.

 It is well settled that a defendant seeking to vacate a default must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see, Roussodimou v. Zafiriadis, 238 A.D.2d 568, 657 N.Y.S.2d 66).   Although the court may, in its discretion, accept law office failure as a reasonable excuse (see, CPLR 2005;  Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919);  “ ‘a pattern of willful default and neglect’ should not be excused” (Roussodimou v. Zafiriadis, supra, at 569, 657 N.Y.S.2d 66, quoting Gannon v. Johnson Scale Co., 189 A.D.2d 1052, 592 N.Y.S.2d 881).   Here, the repeated failure of the defendant's attorney to appear in the Trial Assignment Part on scheduled trial dates demonstrates a pattern of willful neglect, which cannot be justified by his claim that he did not receive notices or legal documents addressed to him at his law firm.   Under these circumstances, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion to vacate his default (see, Kyriacopoulos v. Mendon Leasing Corp., 216 A.D.2d 532, 628 N.Y.S.2d 769;  Matter of United States Auto. Assn. v. Steiger, 191 A.D.2d 496, 594 N.Y.S.2d 336;  Zapell v. Mecca, 190 A.D.2d 791, 593 N.Y.S.2d 841;  Gannon v. Johnson Scale Co., supra).


Copied to clipboard