Opinion
2011-12-20
ADOLPH H. SCHREIBER HEBREW ACADEMY OF ROCKLAND, INC., etc., plaintiff/counterclaim defendant-respondent, v. Scott NEEDLEMAN, defendant/counterclaim plaintiff,Dorit Needleman, defendant/counterclaim plaintiff-appellant.
Dorit Needleman, Wesley Hills, N.Y., defendant/counterclaim plaintiff-appellant pro se. Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (James P. Connors and Rebecca J. Waldren of counsel), for plaintiff/counterclaim defendant-respondent.
Dorit Needleman, Wesley Hills, N.Y., defendant/counterclaim plaintiff-appellant pro se. Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (James P. Connors and Rebecca J. Waldren of counsel), for plaintiff/counterclaim defendant-respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant/counterclaim plaintiff Dorit Needleman appeals from an order of the Supreme Court, Rockland County (Kelly, J.), entered July 5, 2011, which denied her motion for leave to enter a default judgment against the plaintiff/counterclaim defendant upon its failure to timely interpose a reply to her counterclaims, and granted the plaintiff/counterclaim defendant's cross motion, in effect, to vacate its default, and for leave to serve a late reply to the counterclaims.
ORDERED that the order is affirmed, with costs.
To prevail on a motion to vacate a default, a party is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense ( see Hospital for Joint Diseases v. Dollar Rent A Car, 25 A.D.3d 534, 806 N.Y.S.2d 437; Fekete v. Camp Skwere, 16 A.D.3d 544, 545, 792 N.Y.S.2d 127; Amato v. Fast Repair, Inc., 15 A.D.3d 429, 430, 790 N.Y.S.2d 510; Czarnik v. Urban, 10 A.D.3d 627, 781 N.Y.S.2d 610). The determination of what constitutes a reasonable excuse lies within the trial court's discretion ( see Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 394, 780 N.Y.S.2d 764; Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66; Grutman v. Southgate At Bar Harbor Home Owners' Assn., 207 A.D.2d 526, 527, 616 N.Y.S.2d 68), and the trial court has the discretion to accept law office failure as a reasonable excuse ( see CPLR 2005; Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114; see also Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109).
Here, the plaintiff/counterclaim defendant's attorney provided a credible explanation for his failure to timely serve a reply to the amended answer with counterclaims. In addition, the delay was short, only 10 days, and was neither intentional nor a part of a pattern of neglect. Moreover, the plaintiff/counterclaim defendant adequately demonstrated the existence of a potentially meritorious defense to the counterclaims asserted by the defendant/counterclaim plaintiff Dorit Needleman (hereinafter Needleman). Accordingly, it was a provident exercise of discretion to deny Needleman's motion for leave to enter a default judgment on her counterclaims, and to grant the plaintiff/counterclaim defendant's cross motion, in effect, to vacate its default and for leave to serve a late reply to the counterclaims.