Walker v. Mohammed

90 A.D.3d 1034, 934 N.Y.2d 854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2011
• Status: Published

Opinion

To vacate their default in opposing the defendants’ motion for summary judgment, the plaintiffs were required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Casali v Cyran, 84 AD3d 711 [2011]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392 [2008]). Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court (see SS Constantine & Helen’s Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 745 [2007]).

Here, the Supreme Court improvidently exercised its discretion in concluding that the plaintiffs’ excuse for their default, which was based on law office failure, was not reasonable (see CPLR 2005). Moreover, the plaintiffs’s submissions were sufficient to establish the existence of a potentially meritorious opposition to the motion. Under these circumstances, and cognizant that public policy favors the resolution of cases on the merits, the Supreme Court should have granted the plaintiffs’ motion pursuant to CPLR 5015 to vacate the order dated June 2, 2010. Dillon, J.E, Dickerson, Leventhal, Austin and Miller, JJ., concur.