Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered March 20, 2008. The order denied defendant's motion to vacate a default judgment and restore the matter to the calendar.

Order affirmed without costs.

This personal injury action, arising out of an incident which allegedly occurred in defendant's building, was commenced in 1997, in the Supreme Court, Kings County. In 2002, the action was transferred to the Civil Court, Kings County. By order dated April 14, 2005, the Civil Court granted on default defense counsel's motion to be relieved as counsel, and defendant was directed to retain new counsel within 60 days of the date of the order, with the admonition that [s]hould defendant fail to secure new counsel within sixty (60) days from the date of this Order, all stays shall be lifted and said party be deemed pro se." As directed by the court, a copy of the order with notice of entry was served on defendant at the address of Jack Greenbaum, defendant's principal and sole shareholder. Apparently, new counsel was not secured, and an inquest was held in December 2005, at which there was no appearance for defendant. A notice of settlement of judgment was mailed to defendant at the aforementioned address in December 2005, and a judgment in favor of plaintiff in the sum of $250,000 was entered in January 2007.

Thereafter, in February 2008, new counsel for defendant moved to vacate the default judgment entered against defendant and restore the matter to the trial calendar. In support of the motion, counsel submitted an affidavit in which the affiant stated that she was the daughter of Jack Greenbaum, defendant's former principal and sole shareholder, who had passed away in December 2007, and that she was now defendant's president. She explained that in 2002, her father had been inattentive to corporate matters, and that he either had not understood the import of the court's order relieving defense counsel, or had not been aware of the entry of the order. Present defense counsel opined that there was a meritorious defense to the action by virtue of the [*2]fact that an answer had been interposed early on in the proceeding. The Civil Court denied the motion, and this appeal by defendant ensued.

CPLR 5015 (a) (1) provides that a court which rendered a judgment may, upon motion, relieve a party from such judgment upon the ground of excusable default. In order to obtain such relief, however, the movant must establish that the default was excusable and that there is a meritorious defense to the action (see e.g. Kaplinsky v Mazor, 307 AD2d 916 [2003]). In the instant case, defendant failed to establish by competent evidence a reasonable excuse for defendant's default in appearing. The affidavit of Mr. Greenbaum's daughter consisted of conclusory allegations regarding the state of her father's health, which were insufficient to constitute a reasonable excuse for the default, particularly in light of the fact that the record demonstrates that defendant was properly served at Mr. Greenbaum's address, the corporate address, as directed by the court.

In view of our determination, we need not address the question of whether defendant established the existence of a meritorious defense. However, we note that although a verified pleading may be accepted in lieu of an affidavit of merit (CPLR 105 [u]), it must contain evidentiary facts from a person with knowledge in order to establish the merits of the defense (see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2005]). The verified answer in the instant case was insufficient as an affidavit of merit.

Finally, we reject defendant's argument that it was improper for the court to deem defendant to be self-represented if it did not secure counsel. A corporate defendant may not obstruct or impede the progress of litigation by refusing to retain counsel (see e.g. Valisa MFG, LLC v 54 Group, Ltd., 19 Misc 3d 1136[A], 2008 NY Slip Op 51017[U] [2008]), and, where a corporate defendant fails to appear by attorney, it is proper for a court to hold said defendant in default (id.; see also World on Columbus, Inc. v L.C.K. Rest. Group, Inc., 260 AD2d 323 [1999]).

Accordingly, we find that the Civil Court did not improvidently exercise its discretion in denying defendant's motion, and the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009