Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v. Needleman

90 A.D.3d 791, 934 N.Y.S.2d 810

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 2011
• Status: Published

Opinion

To prevail on a motion to vacate a default, a party is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense (see Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534 [2006]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]; Amato v Fast Repair, Inc., 15 AD3d 429, 430 [2005]; Czarnik v Urban, 10 AD3d 627 [2004]). The determination of what constitutes a reasonable excuse lies within the trial court’s discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394 [2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]; Grutman v Southgate At Bar Harbor Home Owners’ Assn., 207 AD2d 526, 527 [1994]), and the trial court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005; Henry v Kuveke, 9 AD3d 476, 479 [2004]; see also Gironda v Katzen, 19 AD3d 644, 645 [2005]).

Here, the plaintiff/counterclaim defendant’s attorney provided a credible explanation for his failure to timely serve a reply to the amended answer with counterclaims. In addition, the delay was short, only 10 days, and was neither intentional nor a part of a pattern of neglect. Moreover, the plaintiff/counterclaim defendant adequately demonstrated the existence of a potentially meritorious defense to the counterclaims asserted by the defendant/counterclaim plaintiff Dorit Needleman (hereinafter Needleman). Accordingly, it was a provident exercise of discretion to deny Needleman’s motion for leave to enter a default judgment on her counterclaims, and to grant the plaintiff/ counterclaim defendant’s cross motion, in effect, to vacate its default and for leave to serve a late reply to the counterclaims. Dillon, J.E, Dickerson, Leventhal, Austin and Miller, JJ., concur.