Opinion
September 27, 1985
Appeal from the Supreme Court, Erie County, Cook, J.
Present — Dillon, P.J., Doerr, Boomer, Green and Pine, JJ.
Order unanimously affirmed, 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 A.D.2d 1002, appeal dismissed 63 N.Y.2d 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.