Appeal by plaintiff from an order of the Small Claims Part of the District Court, Nassau County (S. Kluewer, J.), dated April 29, 2002, which granted defendant's motion to vacate the default judgment entered against it and restored the action to the trial calendar.

Order reversed without costs and defendant's motion to vacate the default judgment denied.

It is well settled that "[a] party attempting to vacate a default judgment must establish a reasonable excuse for the default and a meritorious defense" (Fort Madison Assocs. v Caldararo, 280 AD2d 581). The moving papers submitted by defendant's counsel stated that there was a reasonable excuse for the failure to appear for trial, to wit, that counsel was unavailable because he had a prior commitment and that when he contacted the Clerk of the Small Claims Part to request an adjournment, the Clerk agreed to adjourn the trial. However, because the supporting affirmation was signed by an attorney other than the attorney who was unavailable and requested the adjournment from the Clerk, it had no probative value inasmuch as it was not executed by a person with personal knowledge of the facts set forth therein (see Zuckerman v City of New York, 49 NY2d 557). Moreover, the affirmation merely set forth that counsel did not appear due to a prior commitment, but there was no attempt to set forth any facts which could permit a court to determine whether such excuse was reasonable. In addition, the meritorious defense proffered by defendant was based upon hearsay. Although defendant's counsel [*3]subsequently submitted, albeit belatedly, what purported to be a reply affirmation in which he explained why he did not sign the moving affirmation, such "affirmation" likewise had no probative value since it was unsigned. In any event, defendant's counsel expressly refused therein to set forth the nature of the conflict which rendered him unable to appear for trial. In light of the foregoing, the court improvidently exercised its discretion when it granted defendant's motion to vacate the default judgment (see OCI Mtge. Corp. v Murphy, 258 AD2d 633; Vamattam v Yohannan, 204 AD2d 435; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d 591; Torres v Houses "R" Us, 182 AD2d 684).

Winick, J.P. and Rudolph, J., concur.

Lifson, J. dissents in a separate memorandum.
PRESENT:WINICK, J.P., LIFSON and RUDOLPH, JJ.
NO. 2002-1117 N C
MASON C. MILLER,
Appellant, -
against
[*4]COUNTY OF NASSAU, OFFICE OF THE
COUNTY ATTORNEY C/O MIKE YOUNG,
Respondents.

Lifson, J. dissents and votes to affirm the order granting defendant's motion to vacate the default judgment in the following memorandum:

Although the law is well settled that, to prevail upon an application to vacate a default, the movant must establish the existence of both a justifiable excuse for the default as well as a meritorious defense to the underlying action (Fort Madison Assocs. v Caldararo, 280 AD2d 581), great deference should be afforded the court's determination particularly where, as here, the vagaries of the proceeding before the court are not readily discernible upon appellate review.

The majority places great reliance on its determination that no reasonable excuse for the default has been shown. The record indicates otherwise. Here, the defaulting party (a municipal corporation), through counsel (who regularly appears in the part in question), states that defendant was granted an adjournment by the Clerk. Believing that the matter was adjourned, the defendant failed to appear on the scheduled date for trial. The fact that the learned District Court Judge vacated the default implicitly validates the [*5]fact, as alleged by defendant, that the Clerk of the Small Claims Part apparently was cloaked with, or delegated, such authority by the court. Here, the excuse for the default was not the error of the defaulting party (see Gibson v Motor Vehicle Acc. Indemnification Corp., 45 AD2d 678), but a potential clerical error of the Court Clerk in failing to record the fact that an adjournment had been granted.

In view of the strong policy of having an adjudication on the merits (see Stark v Marine Power & Light Co., 99 AD2d 753) and giving due deference to the ability df the court below to govern its own calendar procedures, the trial court's efforts to correct its own errors should not be disturbed. An affirmance is warranted. I therefore respectfully dissent.
Decision Date: August 13, 2003