Curran v. Graf

13 A.D.3d 409, 789 N.Y.S.2d 891, 2004 N.Y. App. Div. LEXIS 15250

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Costello, J.), dated December 15, 2003, which denied their motion for leave to enter judgment against the defendants William Graf and Janice Graf upon their default in appearing or answering and deemed the proposed verified answer of those defendants to have been served.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for leave to enter a judgment against the respondents upon their default in appearing or answering, and in deeming the respondents’ proposed verified answer to have been served. A court may vacate a default where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]). It was within the discretion of the Supreme Court, in the interest of justice, to excuse default resulting from “law office failure” (CPLR 2005; see CPLR 2004; Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989]). Furthermore, the respondents’ proposed verified answer set forth facts sufficient to make out a prima facie showing of a meritorious defense (see Bartoo v Buell, 87 NY2d 362 [1996]; Rosenberg v Eternal Mems., 291 AD2d 391 [2002]; Lichtman v Sears, Roebuck & Co., 236 AD2d 373 [1997]). S. Miller, J.P., Smith, Cozier and Fisher, JJ., concur.