Capellino Abattoir v. Robert Lieberman

[59 A.D.2d 986 Page 986] Appeal from an order of the Supreme Court at Special Term, entered March 10, 1977 in St. Lawrence County, which denied defendant's motion to vacate a default judgment. The underlying action herein was instituted on January 29, 1968 to recover the sum of $6,075.60 for assorted veal meats allegedly sold by plaintiff to defendant. Subsequently, on January 29, 1969, a default judgment was entered against defendant in the action when he failed to file an amended answer to plaintiff's amended complaint. Not until almost eight years later, however, on October 22, 1976, was defendant served with a subpoena duces tecum to take his deposition as a judgment debtor, and it was at this time that defendant alleges he first learned of the default judgment. He thereupon acted forthwith to vacate the judgment, and ultimately Special Term granted his motion to vacate upon the condition that he file a surety bond as security or make a $10,000 cash payment into court. When defendant failed to comply with the security requirement, the order appealed from denying his motion to vacate was issued. We hold that Special Term's order must be reversed. The law clearly favors the resolution of cases on the merits (Kahn v Stamp, 52 A.D.2d 748), and here defendant has carried his burden by establishing a valid excuse for the default, the absence of willfulness on his part, and also a meritorious defense to the action (Wall v Bennett, 33 A.D.2d 827). His excuse and absence of willfulness are amply demonstrated by his own affidavit and affidavits of his present attorney and his former attorney to the effect that he was never served with a copy of plaintiff's amended complaint and, therefore, could rightly be excused for failing to file an amended answer. In opposition to these affidavits, plaintiff could submit only the statement of his attorney that defendant's attorney was served with a copy of the amended complaint, and significantly, there is no affidavit of service or return receipt or any other proof of service of the amended complaint in the record nor any claim that such proof exists. Under these circumstances, we find that defendant's default is excusable (cf. Fusco v Malcolm, 50 A.D.2d 685). Similarly, in his affidavit of merit submitted in support of the motion to reargue the amended decision of Special Term, defendant's attorney asserts a meritorious defense to the action based upon what the record clearly establishes to be his own personal knowledge. The motion to reargue was, in effect, really a motion to renew since the submitted affidavit contained information not previously before the court (Mindy's Wine Cellar v American & Foreign Ins. Co., 51 A.D.2d 650), and this new information indicated that receipts in defendant's possession absolved him from any personal liability to plaintiff for the purchase of the veal meats in question and established that the purchase was made from plaintiff by Robert Lieberman & Sons, Inc., a corporation duly organized pursuant to the laws of the State of New York. In the absence of additional evidence showing that defendant also assumed individually the responsibility for paying for the meat or that fraud was involved, defendant would thus plainly be freed from any liability to plaintiff in the instant action even though he be an officer or principal [59 A.D.2d 986 Page 987]