Opinion
March 11, 1996
Appeal from the Supreme Court, Kings County (Spodek, J.).
Ordered that the appeal from the order dated June 20, 1994, is dismissed, as that order was superseded by the order dated January 19, 1995, made upon reargument; and it is further,
Ordered that the order dated January 19, 1995, is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs.
Default may be excused upon a showing of a meritorious defense and a justifiable excuse for the delay or the default (see, Barasch v Micucci, 49 N.Y.2d 594, 599; Kyriacopoulos v Mendon Leasing Corp., 216 A.D.2d 532; Korea Exch. Bank v Attilio, 186 A.D.2d 634). The physician's affidavit in this case established that the respondents have a meritorious defense against the plaintiff's claim. Moreover, the determination of what constitutes a reasonable excuse lies in the sound discretion of the court (see, Barasch v Micucci, supra, at 599; Bardales v Blades, 191 A.D.2d 667, 668; 38 Holding Corp. v City of New York, 179 A.D.2d 486, 487). Based on the record before us, we cannot say that the Supreme Court's finding that a reasonable excuse existed was an improvident exercise of discretion.
Contrary to the plaintiff's contention, the respondents' remedy in this instance was to move before the Supreme Court for an order vacating their default (see, CPLR 5501 [a] [1]; Picinic v Seatrain Lines, 117 A.D.2d 504; Berlin v Schlotthauer, 117 A.D.2d 768). O'Brien, J.P., Santucci, Altman and Goldstein, JJ., concur.