Avery v. Caldwell

55 A.D.3d 473, 865 N.Y.S.2d 591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Leland G. De-Grasse, J.), entered June 13, 2007, which granted defendant’s motion to vacate a default judgment, unanimously affirmed, without costs.

A reasonable excuse for the default is demonstrated by the affirmations of defendant’s attorney and his physician, which together are adequate to show that illness prevented the attorney from preparing an answer over the period of delay (see Embraer Fin. Ltd. v Servicios Aereos Profesionales, S.A., 42 AD3d 380 [2007]). Defendant has put forward a meritorious defense in its proposed verified answer and accompanying documents (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774 [2000]). We reject plaintiffs alternative argument that the defendant’s attorney’s performance of various legal services, including contacting the court’s Clerk to request additional time to submit a proposed counter-default judgment, constituted opposition to the motion for a default judgment requiring an appeal therefrom rather than a motion to vacate (cf. Achampong v Weigelt, 240 AD2d 247 [1997]). Concur—Tom, J.P., Saxe, Williams, Catterson and Moskowitz, JJ.