Opinion
11-25-2015
HILLWICK, INC., appellant, v. ADVANCED READY MIX SUPPLY CORP., et al., defendants,Advanced Transit Mix Corp., respondent.
Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, N.Y. (Manny A. Frade of counsel), for appellant. Dealy Silberstein & Braverman, LLP, New York, N.Y. (Milo Silberstein of counsel), for respondent.
Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, N.Y. (Manny A. Frade of counsel), for appellant.
Dealy Silberstein & Braverman, LLP, New York, N.Y. (Milo Silberstein of counsel), for respondent.
Opinion
In an action, inter alia, to recover damages for breach of contract and on an account stated, the plaintiff appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated January 9, 2015, which granted the motion of the defendant Advanced Transit Mix Corp. to vacate so much of a judgment of the same court dated October 15, 2014, as was in favor of the plaintiff and against it, upon its failure to appear or answer.
ORDERED that the order is affirmed, with costs.
A defendant seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116; Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, 463 N.Y.S.2d 192, 449 N.E.2d 1270; Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 A.D.3d 825, 958 N.Y.S.2d 472; Arias v First Presbyt. Church in Jamaica, 100 A.D.3d 940, 941, 957 N.Y.S.2d 121; Kouzios v. Dery, 57 A.D.3d 949, 949, 871 N.Y.S.2d 303). The affirmation submitted by the attorney representing the defendant Advanced Transit Mix Corp. (hereinafter the defendant), the affidavit of the defendant's president, and other evidence in the record, were sufficient to establish that the failure to serve a timely answer was not willful, but rather, was due to law office failure (see CPLR 2005; Thompson v. County of Suffolk, 61 A.D.3d 962, 963, 878 N.Y.S.2d 181; Whitfield v. State of New York, 28 A.D.3d 541, 542, 814 N.Y.S.2d 185; Friedman v. Crystal Ball Group, Inc., 28 A.D.3d 514, 515, 813 N.Y.S.2d 496; Hospital for Joint Diseases v. ELRAC, Inc., 11 A.D.3d 432, 433, 783 N.Y.S.2d 612). Furthermore, the defendant demonstrated the existence of a potentially meritorious defense (see Last Time Beverage Corp. v. F & V Distrib. Co., LLC, 98 A.D.3d 947, 950, 951 N.Y.S.2d 77; John John, LLC v. Exit 63 Dev., LLC, 35 A.D.3d 540, 541–542, 826 N.Y.S.2d 657; Rivera v. Citgo Petroleum Corp., 181 A.D.2d 818, 819, 583 N.Y.S.2d 159). Accordingly, the Supreme Court providently exercised its discretion in granting the defendant's motion to vacate so much of the default judgment as was in favor of the plaintiff and against it.
RIVERA, J.P., DICKERSON, MALTESE and LaSALLE, JJ., concur.