Opinion
2018–13640 Index No. 1466/15
03-04-2020
HORIO REALTY CORP., Respondent, et al., Plaintiff, v. HUNTS POINT FLOWER MARKET, INC., et al., Defendants, Elton Heri, Appellant.
Morrison Cohen LLP, New York, N.Y. (Y. David Scharf, Christopher Milito, and Joaquin Ezcurra of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone LLP, Brooklyn, N.Y. (Andrea J. Caruso of counsel), for respondent.
Morrison Cohen LLP, New York, N.Y. (Y. David Scharf, Christopher Milito, and Joaquin Ezcurra of counsel), for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone LLP, Brooklyn, N.Y. (Andrea J. Caruso of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order dated September 14, 2018, is reversed, on the law and in the exercise of discretion, with costs, and the motion of the defendant Elton Heri pursuant to CPLR 5015(a) to vacate the orders dated June 9, 2017, and December 21, 2017, is granted.
In November 2014, the defendant Elton Heri purchased real property located on 18th Avenue in Brooklyn (hereinafter the subject property) at a judicial sale. Subsequently, the plaintiffs commenced this action to vacate the judicial sale of the subject property, alleging that the sale was defective for lack of notice, and that the purchase price paid by Heri was unconscionable.
The plaintiff Horio Realty Corp. (hereinafter Horio) moved for summary judgment on the complaint, and Heri cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against him. The motion and the cross motion were fully briefed, and the parties stipulated to a return date of June 16, 2017, for the Supreme Court to hear oral argument. It is undisputed that thereafter, the court, sua sponte, moved the return date up one week, to June 9, 2017, and did not notify the parties. Despite the lack of notice, counsel for Horio appeared in court on June 9, 2017, but Heri's counsel failed to appear.
In an order dated June 9, 2017, the Supreme Court, inter alia, granted Horio's motion for summary judgment on the complaint, upon Heri's default in appearing for oral argument. Subsequently, in an order dated December 21, 2017, the court, among other things, vacated the judicial sale of the subject property. Heri moved pursuant to CPLR 5015(a) to vacate the orders dated June 9, 2017, and December 21, 2017. In an order dated September 14, 2018, the court denied Heri's motion. Heri appeals.
To vacate his default in appearing for oral argument, Heri was required to demonstrate a reasonable excuse for his default and a potentially meritorious defense to Horio's motion (see CPLR 5015[a][1] ; Gately v. Drummond , 161 A.D.3d 947, 948, 77 N.Y.S.3d 519 ; Needleman v. Tornheim , 106 A.D.3d 707, 708, 964 N.Y.S.2d 231 ). Whether an excuse is reasonable is a determination within the sound discretion of the court (see Young Su Hwangbo v. Nastro , 153 A.D.3d 963, 965, 60 N.Y.S.3d 412 ), and the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005 ) where that claim is supported by a detailed and credible explanation of the default at issue (see Sarcona v J & J Air Container Sta., Inc. , 111 A.D.3d 914, 915, 976 N.Y.S.2d 156 ; Swensen v. MV Transp., Inc. , 89 A.D.3d 924, 925, 933 N.Y.S.2d 96 ; Henry v. Kuveke , 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 ).
Here, the affidavits and documentary evidence submitted by Heri in support of his motion set forth a detailed and credible explanation for his counsel's failure to appear at oral argument (see Gately v. Drummond , 161 A.D.3d at 948, 77 N.Y.S.3d 519 ; Swensen v. MV Transp., Inc. , 89 A.D.3d at 925, 933 N.Y.S.2d 96 ). Moreover, his evidentiary submissions established a potentially meritorious defense to Horio's motion (see Needleman v. Tornheim , 106 A.D.3d at 708, 964 N.Y.S.2d 231 ).
Accordingly, the Supreme Court should have granted Heri's motion to vacate the orders entered upon his default.
Heri's remaining contentions either are without merit or need not be reached in light of our determination.
SCHEINKMAN, P.J., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur.