Donald G. Knox, Appellant, v. Lincoln Savings Bank et al., Respondents

Donald G. Knox, Appellant, v Lincoln Savings Bank et al., Respondents. [MAJORITY] In an action to recover the proceeds of several bank accounts, plaintiff appeals from an order of the Supreme Court, Kings County (Bellard, J.), dated May 6, 1981, which, inter alia, (1) granted the motion of defendant Joseph H. Knox to vacate a default judgment entered against him and (2) granted defendant Lincoln Savings Bank’s cross motion for an order directing the return of a teller’s check issued to plaintiff and his attorneys. Order reversed, on the law, without costs or disbursements, and the motion and cross motion are denied. To vacate a default judgment, a defendant must demonstrate a reasonable excuse for the default and make a prima facie showing of legal merit. Law office failure, as a matter of law, is an insufficient excuse for the purpose of supporting a motion to vacate a default judgment (see Barasch v Micucci, 49 NY2d 594; Bruno v Village of Port Chester, 77 AD2d 580). The excuse proffered by defendant Knox is that the summons and complaint were “apparently misplaced in transmission.” This is a clear example of law office failure and, as such, cannot serve as the basis for vacating the default judgment. Accordingly, Trial Term abused its discretion in vacating the judgment. Inasmuch as the judgment is not to be vacated, the cross motion must be denied. Hopkins, J.P., Damiani, Titone and Rabin, JJ., concur.