Sholom & Zuckerbrot Realty, LLC v. Sharif Designs, Ltd.

22 A.D.3d 558, 801 N.Y.S.2d 746

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 2005
• Status: Published

Opinion

In an action, inter alia, to recover a real estate brokerage commission, the plaintiff appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated June 18, 2004, which denied its motion pursuant to CPLR 5015 (a) (1) to vacate a prior order of the same court dated April 14, 2004, granting that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint upon the plaintiffs default in opposing the motion.

Ordered that the order is affirmed, with costs.

A party seeking to .vacate a default must establish both a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see CPLR 5015 [a] [1]; Matter of Zrake v New York City Dept. of Educ., 17 AD3d 603 [2005]). The plaintiff established a reasonable excuse for the default attributable to law office failure (see CPLR 2005; Wells v 109 S. 8th, LLC, 17 AD3d 580 [2005]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). However, the plaintiff failed to establish a meritorious cause of action (see Flexro, Ltd. v Korn, 9 AD3d 445, 446 [2004]). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs motion pursuant to CPLR 5015 (a) (1) to vacate the prior order dated April 14, 2004. Cozier, J.P., S. Miller, Rivera and Fisher, JJ., concur.