Vuecom, Inc. v. Century 21 Rand [2d Dept 1999

Full title: VUECOM, INC., et al., appellants, v. CENTURY 21 RAND, et al., respondents

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 2, 1999

(N.Y. App. Div. Dec. 2, 1999)

Opinion

Submitted October 20, 1999

December 2, 1999

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Meehan, J.), dated January 19, 1999, which granted the defendants' motion to vacate a prior order of the same court dated October 15, 1998, granting the plaintiffs' motion for leave to enter judgment against the defendants upon their default in answering the complaint.

DeCaro DeCaro, P.C., Purchase, N.Y. (James S. Makris of counsel), for appellants.

Joseph Rand, New City, N.Y., for respondents.

SONDRA MILLER, J.P., WILLIAM C. THOMPSON, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.

DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the defendants' motion is denied, and the order dated October 15, 1998, is reinstated.

A party attempting to vacate an order granting another party leave to enter a judgment on default must establish both a reasonable excuse for the default and a meritorious defense (see,Roussodimou v. Zafiriadis, 238 A.D.2d 568 ; Putney v. Pearlman, 203 A.D.2d 333 ). While the determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the trial court (see, Bardales v. Blades, 191 A.D.2d 667, 668 ), reversal is warranted where the court improvidently exercises its discretion (see, Orlando v. Corning, Inc., 213 A.D.2d 464 ).

In the instant case, the court improvidently exercised its discretion in granting the defendants' motion to vacate their default. The excuse offered by the defendants' attorney, that the delay in the filing of the answer was caused by the confusion generated by his move back to the New York area and his assumption of new responsibilities as counsel for the defendants, was insufficient under the circumstances of this case (see,Sobel v. Village of Scarsdale, 255 A.D.2d 500 ; Ortiz v. Delmar Recycling Corp., 244 A.D.2d 392 ; Martyn v. Jones, 166 A.D.2d 508 ).

S. MILLER, J.P., THOMPSON, KRAUSMAN, FLORIO, and SCHMIDT, JJ., concur.