Recitation as required by CPLR 2219(a) of the papers considered in the review of this Motion: Papers Numbered Order to Show Cause & Affts 1 Opposition Reply & Affidavits Sur-Reply Supplemental Affidavits DECISION AND ORDER Upon the foregoing cited papers and after oral argument, the Decision/Order on the defendant’s second motion by order to show cause, is as follows: In this action, defendant, June Daniels, moves to vacate the judgment in this action and upon such vacatur, restoring the action to the calendar and vacating the underlying default. No written opposition to that application was served by the plaintiff. Therefore, the plaintiff rests on the papers of the defendant. Plaintiff commenced this action and served the instant amended summons with endorsed complaint on the defendants at 14-18 Mott Avenue, Far Rockaway, NY. The gravamen of the action is rent which was conditionally waived in a related summary eviction proceeding 60089/19). The condition set forth in the stipulation in the related proceeding required the tenant to vacate and surrender the premises which formed the basis for that proceeding by July 31, 2019. The plaintiff claimed the defendant failed to timely vacate and sought a judgment for the full amount of the arrears based upon the default in the stipulation. The defendant interposed an answer on or about September 27, 2019. The court sent both sides a notice to appear on November 14, 2019. On that date, the plaintiff appeared, but the defendants all defaulted and the plaintiff entered a default judgment against the defendants. The defendant’s order to show cause is supported by an attorney’s affirmation. The attorney asserts that “law office failure” caused the default of the defendant on November 14, 2019. That is what the defendant is claiming as her reasonable excuse for the default. The explanation given is that the attorney assigned to the matter failed to calendar it and had two conflicting court appearances on that day in any event. However, the attorney who submitted the supporting affirmation in the pending application is not the same attorney whose responsibility it was to calendar the case and appear in court. That attorney is no longer employed by the law firm representing the defendant herein. Moreover, the attorney who submitted the supporting affirmation was not even employed by the responsible law firm when the law office failure allegedly occurred. Therefore, the affirmation is not based upon personal knowledge. At best, the affirmation is based upon double hearsay and at worst, is based solely upon conjecture and speculation. At a minimum, the affirmation should have been authored by an attorney who was employed at the firm at the relevant time and had personal knowledge of the transgressions, if in fact the assigned attorney is no longer available. The alleged meritorious defense is also woefully deficient, because it is not attested by the defendant. Through her attorney, the defendant asserts that the outstanding rent was waived by the plaintiff, because the defendant vacated and surrendered the subject premises in a timely manner. The assertions made by the attorney as to the date of vacatur and surrender are not based on personal knowledge. Moreover, the photographs submitted by the defendant have no evidentiary value. They are merely photographs of a pile of trash. The defendant did not establish where or when these photographs were taken or the condition of the subject premises on July 31, 2019, much less the vacatur of it. As a matter of law, to obtain vacatur of an order or judgment entered on the basis of default, a defendant has the burden of proving there exists both (1) a reasonable excuse for their default and (2) an underlying meritorious defense or claim in the action. CPLR 5015(a), also see Cox v. Marshall, 161 AD3d 1140, 78 NYS3d 212 (2d Dept, 2018); Stein v. Davidow, Siegel & Stern, LLP, 157 AD3d 741, 68 NYS3d 497 (2d Dept, 2018); Katz v. Marra, 74 AD3d 888, 905 NYS2d 204(2nd Dept., 2010). The defendant has not proven either a reasonable excuse or a meritorious defense. When the Legislature of this State enacted CPLR §2005, it effectively overruled the previous approach to pleading and other defaults due to law office failure. Before the enactment of that statute, the law of this State was that law office failure was not a valid excuse for defaults in statutory compliance in litigation. See Barasch v. Micucci, 49 NY2d 594, 427 NYS2d 732 (1980); Eaton v. Equitable Life Assur. Soc. Of U.S., Inc. 56 NY2d 900, 453 NYS2d 404 (1982). Therefore, since the enactment of that 1983 statute, law office failure may be utilized as a legitimate excuse for defaults and could be considered as a factor to be weighed with other pertinent ones in determining motions to vacate defaults. However, the excuse for the default and the evidentiary facts related to the merits of the action must be attested to by someone with personal knowledge of those facts. Incorporated Village of Hempstead v. Jablonsky, 283 AD2d 553, 725 NYS2d 76 (2nd Dept 2001); LaBuda v. Brookhaven Memorial Hosp. Medical Center 98 AD2d 711, 469 NYS2d 112 (2nd Dept. 1983); A.M. Medical Services, P.C v. Liberty Mut. Ins. Co, 29 Misc 3d 87, 912 NYS2d 834 (AT 2nd, 11th and 13th 2010). The defendant’s motion by order to show cause must be denied, as it failed to set forth a reasonable excuse and a meritorious defense. In her supporting papers, the defendant failed to submit both an affirmation and an affidavit from individuals with personal knowledge. The affirmation of an attorney with personal knowledge would have been necessary to establish what transpired with respect to the “law office failure” which resulted in the defendant’s default on November 14, 2019. The affidavit of the defendant would have attested to the actual defense to the underlying complaint. The affirmation of an attorney who wasn’t employed by the firm at the time of the law office failure and who had no personal knowledge of the facts relating to the law office failure or the underlying defenses of the defendant did not meet the necessary criteria to vacate a default judgment. The affirmative defenses asserted in the defendant’s proposed answer lack any specificity. The paucity of factual allegations render them meaningless. Affirmative defenses comprised solely of one-line conclusions without any specific allegations at all, make them inadequate as a matter of law. Bank of Am., N.A. v. Seon Yeong Kang, 2011 WL 295014, 2011 N.Y. Slip Op. 32828(U) (N.Y. Sup). Also see Becher v. Feller, 64 AD3d 672, 884 NYS2d 83 (2d Dept. 2009); Cohen Fashion Optical, Inc. v. V&M Optical, Inc., 51 AD3d 619, 858 NYS.2d 260 (2nd Dept. 2008). Brody v. Saroka, 173 AD2d 420, 570 NYS.2d 48 (2d Dept. 1991). Accordingly, it is ORDERED, that defendant’s motion to vacate the default judgment entered against her is denied. The stay on enforcement of the judgment is vacated. This constitutes the decision and order of the court. Dated: August 18, 2020
