Opinion
2005-1937 K C.
Decided on November 8, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 13, 2005. The order granted a motion by defendant Rita Sisto as administratrix of the estate of Mary V. E. Sisto to vacate a default judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
The default judgment, insofar as it was against Mary V. E. Sisto, who was deceased at the time this action was commenced, is a nullity ( Zito v City of N.Y., 293 AD2d 465). Insofar as the motion by defendant Rita Sisto (defendant) as administratrix of the estate of Mary V. E. Sisto sought to vacate the default judgment as against herself, we note that a party seeking to vacate a default judgment must establish a reasonable excuse for the default and a meritorious defense ( see CPLR 5015 [a] [1]; Eugene Di Lorenzo v Dutton Lbr. Co., 67 NY2d 138, 140). Contrary to plaintiff's contention, the excuse of law office failure proffered by counsel for defendant was reasonable under the facts in this case ( see CPLR 2005). The affirmation of defendant's attorney in support of the motion established that the default was not willful or deliberate, and there was no evidence of prejudice to plaintiff ( see Burns v Casale, 276 AD2d 734, 735). Additionally, defendant established a prima facie showing of the existence of a meritorious defense in light of plaintiff's deposition testimony that she did not know what caused her to fall down the stairs at the deceased's premises. Accordingly, the motion to vacate the default judgment was properly granted.
Pesce, P.J., Golia and Rios, JJ., concur.