Brown v. Ryder Truck Rental, Inc.

172 A.D.2d 477, 567 N.Y.S.2d 831, 1991 N.Y. App. Div. LEXIS 4290

Opinion

In an action to recover damages for personal injuries, etc., the defendant Ryder Truck Rental, Inc., appeals from an order of the Supreme Court, Kings County (Vaccaro, J.), dated June 6, 1989, which granted the plaintiffs’ motion to vacate their default in appearing at a conference, and reinstated their complaint.

Ordered that the order is affirmed, with costs.

It is within the discretion of the trial court "in the interests of justice to excuse delay or default resulting from law office failure” (CPLR 2005). A court will vacate such a default upon a showing of a meritorious cause of action, a justifiable excuse for the default and absence of willfulness (see, Goldstein Affiliates v Len Art Knitting Corp., 75 AD2d 551). In the matter at bar, the plaintiffs’ counsel submitted an affidavit explaining how a clerical oversight, constituting law office failure, had caused the default at issue, while one of the plaintiffs submitted an affidavit of merit. In a proper exercise of its discretion, the trial court concluded that this showing was sufficient (cf., Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693). Thompson, J. P., Kunzeman, Eiber and Rosenblatt, JJ., concur.