Opinion
2013-11-27
Thomas SARCONA, appellant, v. J & J AIR CONTAINER STATION, INC., et al., respondents.
Oliver Hull, West Sayville, N.Y., for appellant. Glynn Mercep and Purcell, LLP, Stony Brook, N.Y. (Timothy B. Glynn of counsel), for respondents.
Oliver Hull, West Sayville, N.Y., for appellant. Glynn Mercep and Purcell, LLP, Stony Brook, N.Y. (Timothy B. Glynn of counsel), for respondents.
, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.
In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated October 18, 2012, which granted the defendants' motion to vacate a judgment of the same court dated April 23, 2012, which, upon an order dated August 29, 2011, granting the plaintiff's unopposed motion for summary judgment on the complaint, and upon an order dated February 15, 2012, granting that branch of the plaintiff's motion which was to modify the prior order dated August 29, 2011, was in favor of him and against the defendants in the total sum of $505,285.59.
ORDERED that the order dated October 18, 2012, is affirmed, with costs.
To vacate the judgment entered upon their failure to oppose the plaintiff's motion for summary judgment, the defendants were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to the motion ( seeCPLR 5015[a][1]; Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631; Tsikotis v. Pioneer Bldg. Corp., 96 A.D.3d 936, 946 N.Y.S.2d 491; Walker v. Mohammed, 90 A.D.3d 1034, 934 N.Y.S.2d 854). The Supreme Court may, in its discretion, accept law office failure as a reasonable excuse ( seeCPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue ( see Swensen v. MV Transp., Inc., 89 A.D.3d 924, 925, 933 N.Y.S.2d 96; Remote Meter Tech. of N.Y., Inc. v. Aris Realty Corp., 83 A.D.3d 1030, 1032, 922 N.Y.S.2d 440; Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114). Under the circumstances of this case, and based on the evidence in the record, the defendants demonstrated that their failure to oppose the plaintiff's motion for summary judgment on the complaint was due to their former attorney's law office failure ( see Muir v. Coleman, 98 A.D.3d 569, 570, 949 N.Y.S.2d 631; L & L Auto Distribs. & Suppliers Inc. v. Auto Collection, Inc., 85 A.D.3d 734, 735, 925 N.Y.S.2d 151; Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109; Belesi v. Gifford, 269 A.D.2d 552, 703 N.Y.S.2d 753). Furthermore, while the defendants' former attorney failed to appear at a court conference that resulted in the issuance of an order dated February 15, 2012, upon which the subject default judgment was subsequently entered, there is no evidence that the defendants were placed on notice that their former attorney was not going to appear or that he was no longer representing them ( seeCPLR 321[b] [2] ). Moreover, the defendants moved to vacate the subject default judgment shortly after it was entered and they obtained new counsel, and they demonstrated a potentially meritorious opposition to the plaintiff's motion for summary judgment on the complaint ( see Gruder v. Gruder, 38 A.D.2d 587, 328 N.Y.S.2d 223; cf. Sacco v. Sutera, 266 A.D.2d 446, 447, 698 N.Y.S.2d 532; Phillips v. Cioffi, 204 A.D.2d 94, 95, 611 N.Y.S.2d 181; Inter Bus. Mktg. v. Kronengold, 135 A.D.2d 474, 522 N.Y.S.2d 154). Accordingly, the Supreme Court providently exercised its discretion in granting the defendants' motion to vacate the subject default judgment.