Opinion
May 21, 1996
Appeal from the Supreme Court, Bronx County (Jerry L. Crispino, J.).
In order to vacate a default judgment, the moving party must demonstrate a meritorious defense to the underlying action and a reasonable excuse for the delay ( see, Smith v. Daca Taxi, 222 A.D.2d 209; Spatz v. Bajramoski, 214 A.D.2d 436). In the matter at bar, there is, in our view, no question that defendant possesses a meritorious defense to the underlying action. Further, courts have the discretion to consider law office failure as an excuse for the purposes of vacating a default (CPLR 2005; Lopez v. City of New York, 179 A.D.2d 388; MacFarland Bldrs. v. Raymond E. Kelly, Inc., 107 A.D.2d 972). The Corporation Counsel's failure to answer on behalf of Sanchez appears to be the result of a breakdown in communication between the counsel's office and HHC, as there is no discernible intent to abandon the action ( see, Gulledge v. Adams, 108 A.D.2d 950, 951). Since disposition on the merits is favored ( see, Dimitratos v. City of New York, 180 A.D.2d 414; Cappel v. RKO Stanley Warner Theaters, 61 A.D.2d 936), we conclude that the IAS Court should have granted defendant's motion to open the default. However, due to the circumstances presented, we impose the aforestated conditions.
Concur — Rosenberger, J.P., Rubin, Kupferman, Nardelli and Tom, JJ.