Realty Settlement Corp. v. Atkin

Order unanimously af-

firmed, with costs. Memorandum: Plaintiff’s motion to vacate the default summary judgment pursuant to CPLR 5015 (a) (1) was properly denied, as plaintiff failed to make the requisite showing that the default was excusable, and that plaintiff has a meritorious cause of action (see, Klenk v Kent, 103 AD2d 1002, appeal dismissed 63 NY2d 953). Plaintiff’s president, and attorney, argues that he did not have "personal possession” of the notice of motion until three days after its return date, but he fails to offer any explanation as to why he did not have "personal possession” other than a general statement that he frequently travels. This clearly is insufficient. Plaintiff’s motion was properly denied on the further ground that plaintiff is collaterally estopped from arguing the merits of whether General Obligations Law § 5-1311 bars plaintiff from its claim for damages, since that issue was decided in a related action and affirmed by this court. (Appeal from order of Supreme Court, Erie County, Cook, J.—vacate default.) Present—Dillon, P. J., Doerr, Boomer, Green and Pine, JJ.