Kenneth P. Zebrowski Et Al. v. Pearl Kitchens

In January 1989, a dispute between the parties arose over a contract for the delivery and installation by defendant of certain
kitchen cabinets in plaintiffs' residence. Plaintiffs commenced this action by service of a summons with notice dated January
11, 1989 and defendant appeared through its counsel and demanded a complaint. A verified complaint was served upon defendant
in March 1989, but defendant took no further action until August 31, 1989 when it moved to vacate a default judgment entered
against it upon the grounds that, inter alia, personal circumstances and illness of the co-owner of defendant, Richard Ammons,
prevented defendant from interposing an answer. Following Supreme Court's denial of that motion in October 1989, defendant
moved to renew its motion seeking vacatur of the default based upon allegedly defective service and the law office failure
of defendant's prior counsel. This appeal followed from Supreme Court's denial of defendant's renewal motion. There should be an affirmance. In support of a motion to renew pursuant to CPLR 2221, the moving party must show new facts
as well as a justifiable excuse for not placing such facts before the court in the first instance (see, Matter of Barnes v
State of New York, 159 A.D.2d 753, lv dismissed 76 N.Y.2d 735; Lansing Research Corp. v Sybron Corp., 142 A.D.2d 816, 819;
Foley v Roche, 68 A.D.2d 558, 568). Here, the new facts claimed by defendant were that, contrary to the process server's affidavit
of service, Ammons was not personally served at defendant's offices and the individual actually served was not an agent authorized
to accept process on defendant's behalf. As an excuse for not including this information in its initial motion to vacate the
default judgment, defendant claimed the law office failure of its prior counsel, particularly the preparation of an inaccurate
affidavit explaining defendant's default, which Ammons signed without reading. Defendant has made no showing, however, that
the additional facts regarding service were unknown to it at the time of its original motion (see, Martini v Asmann, 146 A.D.2d
571, 572; Lansing Research Corp. v Sybron Corp., supra ; Gulledge v Adams, 108 A.D.2d 950). In fact, Ammons stated in his
affidavit in support of the renewal motion that he told his prior counsel that he was never served with process, "personally
or otherwise". Thus, had Ammons read his first affidavit he would have realized that it did not include the foregoing information,
and the law office failure of his then-counsel would have been readily apparent.