Yacone v. Ryan Homes, Inc.

216 A.D.2d 963, 629 N.Y.S.2d 159, 1995 N.Y. App. Div. LEXIS 7394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1995
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in granting the motion of defendants to vacate their default (see, CPLR 5015 [a] [1]). Defendants’ default resulted from law office failure on the part of defendants’ original attorney. A motion to vacate a default resulting from law office failure may be made pursuant to CPLR 2005 (see, Raphael v Cohen, 62 NY2d 700, 701; First Fed. Sav. & Loan Assn. v O’Daly, 201 AD2d 532). The motion to vacate was based upon the failure of defendants’ former attorney to respond to plaintiffs interrogatories and other failures on counsel’s part. Defendants’ new counsel also included with the moving papers the completed interrogatories that were the subject of the court’s prior conditional orders requiring compliance with plaintiffs request for interrogatories. Thus, defendants demonstrated a valid excuse for their default (see, Lane v Donnelly, 184 AD2d 840). In addition, defendants submitted an affidavit establishing that they had a meritorious defense to the action. Moreover, it does not appear that plaintiff was unduly prejudiced by the delay. (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Vacate Default.) Present—Lawton, J. P., Fallon, Wesley, Callahan and Doerr, JJ.