Opinion
December 6, 1994
Appeal from the Supreme Court, New York County (Richard B. Lowe, III, J.).
An application to vacate an order of default may be granted if the movant can establish that the default was excusable and the existence of a meritorious claim. A determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court (CPLR 5015 [a] [1]; 38 Holding Corp. v City of New York, 179 A.D.2d 486, 487). CPLR 2005 specifically permits the court to exercise its discretion in the interest of justice and excuse a default resulting from law office failure (Magie v Fremon, 162 A.D.2d 857, 858).
The IAS Court did not abuse its discretion since a review of the record reveals that movant established both an excusable default resulting from law office failure, in that, inter alia, essential paperwork, including stipulations, seeking the vacatur and to restore the matter to the trial calendar was inadvertently misplaced (see, Paoli v Sullcraft Mfg. Co., 104 A.D.2d 333), and a meritorious claim, in the form of a personal affidavit from the plaintiff, a person with knowledge of the facts (see, La Buda v Brookhaven Mem. Hosp. Med. Ctr., 62 N.Y.2d 1014), reciting that the defendants' depiction of plaintiff, in their widely-distributed tabloids, as having had intimate relations with a prominent HIV-infected individual, and imputing that the plaintiff may have carried or contracted "a loathsome or communicable disease", was defamatory, false, and libelous per se (Matherson v Marchello, 100 A.D.2d 233, 236).
Nor was the delay in seeking vacatur dispositive, since the court has the inherent power to consider applications seeking relief from a default judgment made more than one year after entry of the default judgment (CPLR 2004; Luna Baking Co. v Myerwold, 69 A.D.2d 832). Finally, the IAS Court, in the exercise of its discretion, properly vacated the default conditioned upon the imposition of appropriate costs upon the movant (see, Damselle, Ltd. v 500-512 Seventh Ave. Assocs., 184 A.D.2d 367, 368; Paoli v Sullcraft Mfg. Co., supra, at 334).
Concur — Murphy, P.J., Sullivan, Kupferman and Asch, JJ.