Opinion
February 4, 1994
Appeal from the Supreme Court, Erie County, Wolf, Jr., J.
Present — Pine, J.P., Balio, Lawton, Fallon and Davis, JJ.
Order unanimously reversed on the law with costs and motion denied. Memorandum: It was an abuse of discretion to grant defendant's request to vacate a default judgment in the absence of an acceptable excuse for defendant's default in answering and a showing of a meritorious defense (see, Dougherty v. County of Nassau, 167 A.D.2d 989; General Elec. Tech. Servs. Co. v. Perez, 156 A.D.2d 781; cf., Zent v. Board of Educ., 174 A.D.2d 1047; Charlotte Lake Riv. Assocs. v. American Ins. Co., 130 A.D.2d 947, lv denied 70 N.Y.2d 605; Cox v. Edmister, 122 A.D.2d 557, appeal dismissed 68 N.Y.2d 900). The affidavit of defendant's attorney stating in bare conclusory language that a meritorious defense exists is of no probative value (see, Cooper Motor Leasing v. Data Discount Ctr., 125 A.D.2d 454; Oversby v Linde Div., 121 A.D.2d 373). Moreover, the proposed answer, a general denial with no allegation of evidentiary facts, cannot be treated as an affidavit of merit (see, Oversby v. Linde Div., supra; Klenk v. Kent, 103 A.D.2d 1002, appeal dismissed 63 N.Y.2d 953). Although defense counsel proffered the excuse that he had been retained only two days before the time to answer and that the volume of paperwork in his office precluded a timely answer, the record shows that the attorney served a notice of retainer and appearance more than a month before the time to answer expired and that an associate in his office represented to plaintiff's attorney that there would be no problem in serving an answer within the allotted time. A proffered excuse lacking in candor should not be accepted, regardless of the minimal period of delay. Under the circumstances, Supreme Court should have denied defendant's motion to vacate the default judgment.