                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 7, 2016                        522393
________________________________

DOUGLAS A. PASSERI,
                      Respondent,
     v

RONALD R. TOMLINS,
                      Defendant,              MEMORANDUM AND ORDER
     and

KLEIN VARBLE & ASSOCIATES,
   P.C.,
                    Appellant.
________________________________


Calendar Date:   May 24, 2016

Before:    Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.

                               __________


      Klein Varble & Associates, PC, Poughkeepsie (John C. Wirth
Jr. of counsel), for appellant.

      Freeman Howard, PC, Hudson (Matthew J. Griesemer of
counsel), for respondent.

                               __________


Garry, J.

      Appeal from an order of the Supreme Court (Nichols, J.),
entered March 23, 2015 in Columbia County, which denied a motion
by defendant Klein Varble & Associates, P.C. to vacate the
default judgment entered against it.

      In December 2006, plaintiff retained defendant Ronald R.
Tomlins to represent him in an action seeking to establish access
rights to property in Columbia County. Following a February 2010
nonjury trial, Supreme Court dismissed plaintiff's claim; a
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subsequent appeal filed by Tomlins on plaintiff's behalf, in
August 2010, was ultimately not perfected. In June 2012,
defendant Klein Varble & Associates, P.C. (hereinafter KVA) hired
Tomlins as an associate. Plaintiff commenced this legal
malpractice action against Tomlins and KVA thereafter in July
2013, alleging that, as a result of Tomlins' negligent
representation, certain access rights that plaintiff sought to
establish were instead extinguished, rendering his property
landlocked and valueless. As to KVA, plaintiff alleged that
Tomlins' representation was continuous until approximately
December 2012, and that KVA was thus jointly liable as Tomlins'
employer.

      Plaintiff's process server personally served Tomlins and
KVA on separate occasions via two office employees at the KVA
office. Plaintiff additionally served defendants by mail and,
after receiving no answer, moved for a default judgment in
February 2014, which Supreme Court entered in March 2014.
Tomlins appeared at the subsequent inquest on damages and
represented that he was also appearing on behalf of KVA.
Judgment against defendants was entered thereafter in August
2014. KVA moved to vacate the default judgment in February 2015,
alleging that the officers of KVA did not actually receive copies
of the complaint and summons and that Tomlins had not made them
aware of the malpractice claim. Supreme Court denied KVA's
motion, finding that KVA had failed to provide a reasonable
excuse and that its failure to appear was due to "institutional
shortcomings." KVA appeals.

      A party seeking to vacate a judgment of default must
demonstrate a reasonable excuse for the default and the existence
of a meritorious defense (see CPLR 5015 [a] [1]; Doane v Kiwanis
Club of Rotterdam, N.Y. Inc., 128 AD3d 1309, 1310 [2015]).
Whether such a motion should be granted "is within the discretion
of the trial court" (Rutnik & Corr CPA's, P.C. v Guptill Farms,
Inc., 127 AD3d 1531, 1531 [2015] [internal quotation marks and
citation omitted]). In support of the motion, KVA proffered the
affidavits of Tomlins and one of its officers, Steven Klein.
According to Tomlins, the summons intended for KVA was served
                               -3-                522393

upon an office employee, who then delivered the copies to him.1
Tomlins averred that he never delivered copies to either Klein or
KVA's other officer, or made them aware of the ongoing
litigation, stating his "reasoning at the time was that this was
a matter exclusively between [plaintiff] and [him]self and having
nothing to do with [KVA]." Klein's affidavit states that KVA's
officers were never made aware of the legal malpractice claim,
and that they only became aware of the claim and the default
motion as a result of holds placed on the firm's bank accounts
relative to collection of the judgment. Klein further stated
that it was office procedure that mail directed to a particular
person is handed to that individual and, therefore, mail
addressed to Tomlins, as the first named defendant, would have
been delivered directly to him. We find that these submissions
are adequate to show that KVA's failure to appear was not the
result of "willfulness or an intent to ignore the action" (Matter
of Toyota Motor Credit Corp. v Impressive Auto Ctr., Inc., 80
AD3d 861, 864 [2011]), but instead suggest that it was the result
of Tomlins' deliberate actions to withhold information, and thus
form the basis for a reasonable excuse.

      As to whether KVA demonstrated the existence of a
meritorious defense, we note that "the quantum of proof needed to
prevail on a CPLR 5015 (a) (1) motion is less than that required
when opposing a summary judgment motion" (Abel v Estate of
Collins, 73 AD3d 1423, 1425 [2010]; see Dodge v Commander, 18
AD3d 943, 945 [2005]). Central to this claim is the existence of
an attorney-client relationship between Tomlins and plaintiff
that was continuous with his earlier representation (see
generally Deep v Boies, 121 AD3d 1316, 1318 [2014], lv denied 25


     1
        As relevant here, personal service upon a corporation may
be effected by delivering the summons to, among others, an
officer, director, managing or general agent or any other
authorized agent (see CPLR 311 [a] [1]). Klein's statement that
the office employee in question was unauthorized, without more,
did not suffice to rebut the presumption of proper service
established by the process server's affidavit (see Cellino &
Barnes, P.C. v Martin, Lister & Alvarez, PLLC, 117 AD3d 1459,
1460 [2014], lv dismissed 24 NY3d 928 [2014]).
                              -4-                522393

NY3d 903 [2015]; Corless v Mazza, 295 AD2d 848, 848-849 [2002]),
and which existed during the period of his employment with KVA
(see Huffner v Ziff, Weiermiller, Hayden & Mustico, LLP, 55 AD3d
1009, 1011 [2008]; C.K. Indus. Corp. v C.M. Indus. Corp., 213
AD2d 846, 847-848 [1995]). The retainer agreement was between
plaintiff and Tomlins only, "with respect to rights and
obligations pertaining [to] a certain private road." Plaintiff's
checks were made out to Tomlins individually, with the last check
written in November 2010. Tomlins and Klein both state that KVA
was not formed until March 2012; after Tomlins joined the firm in
June 2012 he claims to have met with plaintiff "once or twice, as
a courtesy," at the physical offices of KVA, to assist him,
without compensation, "with his efforts to secure a building
permit." Klein states that KVA did not have a retainer agreement
with plaintiff, which he would have insisted upon, had he known
of any representation, and that KVA had received no fees from
plaintiff. Here, we find that KVA met its burden to set forth
sufficient facts "to make a prima facie showing of legal merit"
in its defense (Chase Manhattan Auto. Fin. Corp. v Allstate Ins.
Co., 272 AD2d 772, 774 [2000] [internal quotation marks and
citation omitted]; see Bilodeau-Redeye v Preferred Mut. Ins. Co.,
38 AD3d 1277, 1277 [2007]; Clark v MGM Textiles Indus., 307 AD2d
520, 521-522 [2003]).

      In sum, our review of the record reveals sufficient facts
supporting a reasonable excuse and a meritorious defense. Thus,
in recognition of the "strong preference for deciding cases on
their merits" (Wade v Village of Whitehall, 46 AD3d 1302, 1303
[2007]), we find that KVA's motion to vacate the default judgment
should have been granted.

     Lahtinen, J.P., McCarthy, Clark and Mulvey, JJ., concur.
                              -5-                  522393

      ORDERED that the order is reversed, on the law, with costs,
motion granted, default judgment vacated, and matter remitted to
the Supreme Court for further proceedings not inconsistent with
this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
