Korea Exchange Bank v. Attilio

186 A.D.2d 634, 589 N.Y.S.2d 48, 1992 N.Y. App. Div. LEXIS 11308

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1992
• Status: Published

Opinion

— In an action to foreclose two mortgages on real property, the defendant Robertina V. Attilio appeals from so much of an order of the Supreme Court, Queens County (Smith, J.), dated August 31, 1990, as struck her answer as untimely.

Ordered that the order is affirmed insofar as appealed from, 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 excuse a delay or default upon a showing of a meritorious defense and a justifiable excuse for the delay or default (Vieyra v Briggs & Stratton Corp., 166 AD2d 645). In this matter, affirmation of the defendant Attilio’s counsel merely asserted that his failure to timely file an answer to the complaint was caused by some unspecified personal problems which affected his office’s operation, thereby causing him to file the answer six months late. We discern no improvident exercise of discretion in the Supreme Court’s rejection of this unsubstantiated excuse. Bracken, J. P., Lawrence, Miller, Copertino and Santucci, JJ., concur.