Appellate Division of the Supreme Court of New York, 2011

Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v. Needleman

Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v. Needleman
Appellate Division of the Supreme Court of New York · Decided December 20, 2011
90 A.D.3d 791; 934 N.Y.S.2d 810
Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v. Needleman

Opinion of the Court

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 AD3d 534 [2006]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]; Amato v Fast Repair, Inc., 15 AD3d 429, 430 [2005]; Czarnik v Urban, 10 AD3d 627 [2004]). 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 AD3d 393, 394 [2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]; Grutman v Southgate At Bar Harbor Home Owners’ Assn., 207 AD2d 526, 527 [1994]), and the trial court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005; Henry v Kuveke, 9 AD3d 476, 479 [2004]; see also Gironda v Katzen, 19 AD3d 644, 645 [2005]).

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. Dillon, J.E, Dickerson, Leventhal, Austin and Miller, JJ., concur.

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