Opinion
2018–01724 Index No. 13207/13
09-18-2019
ADVANCED REMODELING OF LONG ISLAND, INC., et al., Respondents, v. Mary Ann MONAHAN, Appellant.
Jules A. Epstein, P.C., Uniondale, NY, for appellant. Campanelli & Associates, P.C., Merrick, N.Y. (Andrew J. Campanelli and Amanda R. Disken of counsel), for respondents.
Jules A. Epstein, P.C., Uniondale, NY, for appellant.
Campanelli & Associates, P.C., Merrick, N.Y. (Andrew J. Campanelli and Amanda R. Disken of counsel), for respondents.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order entered January 19, 2018, is reversed, on the law and in the exercise of discretion, with costs, and the defendant's motion pursuant to CPLR 5015(a)(1) to vacate the order dated October 12, 2017, is granted.
The defendant's attorney failed to appear at a compliance conference, which had been adjourned at his request to October 5, 2017, resulting in an order dated October 12, 2017, in effect, striking the defendant's answer, directing dismissal of her counterclaims, and scheduling an inquest on the issue of the plaintiffs' damages. The Supreme Court denied the defendant's subsequent motion pursuant to CPLR 5015(a)(1) to vacate the order dated October 12, 2017, and the defendant appeals.
In order to vacate a default in appearing at a scheduled court conference, a party must demonstrate both a reasonable excuse for the default and a potentially meritorious defense or cause of action (see Millard v. Wyche , 164 A.D.3d 778, 779–780, 83 N.Y.S.3d 286 ; Lee v. Latendorf , 162 A.D.3d 1002, 1003, 80 N.Y.S.3d 447 ). Here, the defendant's excuse for the default was that it resulted from law office failure, as her attorney neglected to note the adjourned conference date in his calendar. Contrary to the Supreme Court's determination, this was a reasonable excuse, particularly considering that the default was an isolated incident, the defendant promptly moved to vacate the order entered upon the default, and the plaintiffs were not prejudiced (see Rocco v. Family Foot Ctr. , 94 A.D.3d 1077, 1079, 942 N.Y.S.2d 607 ; Simpson v. Tommy Hilfiger U.S.A., Inc. , 48 A.D.3d 389, 392, 850 N.Y.S.2d 629 ; Franco Belli Plumbing & Heating & Sons, Inc. v. Imperial Dev. & Constr. Corp. , 45 A.D.3d 634, 845 N.Y.S.2d 446 ; Mothon v. ITT Hartford Group , 301 A.D.2d 999, 755 N.Y.S.2d 468 ; Barsel v. Green , 264 A.D.2d 649, 695 N.Y.S.2d 350 ).
Moreover, the defendant established that she had a potentially meritorious defense to the complaint, and potentially meritorious counterclaims (see Wilner v. Village of Roslyn , 163 A.D.3d 898, 900, 82 N.Y.S.3d 43 ; Marinoff v. Natty Realty Corp. , 17 A.D.3d 412, 413, 792 N.Y.S.2d 491 ; Liotti v. Peace , 15 A.D.3d 452, 790 N.Y.S.2d 512 ).
Accordingly, the defendant's motion to vacate the order dated October 12, 2017, should have been granted.
MASTRO, J.P., RIVERA, MILLER and CHRISTOPHER, JJ., concur.