Opinion
April 5, 2001.
Order, Supreme Court, New York County (Kibbie Payne, J.), entered. on or about November 5, 1999, which denied plaintiffs' motion to vacate the default judgment against them and for leave to oppose McPhee' s motion to dismiss, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the complaint against defendant McPhee reinstated.
Arnold E. DiJoseph, III, for plaintiffs-appellants.
Pauline E. Glaser, for defendants.
Before: Sullivan, P.J., Rosenberger, Tom, Ellerin, Friedman, JJ.
Plaintiffs demonstrated a reasonable excuse for their default and a meritorious claim (CPLR 5015[a][1]); Mediavilla v. Gurman, 272 A.D.2d 146). Their uncontested affidavits and the police reports of the accident establish the meritoriousness of their cause of action. Counsel's terse explanation of law office failure does not preclude the court from exercising its discretion to excuse the default (CPLR 2005; id.). McPhee's contention that counsel's failure to oppose the motion to dismiss was part of a practice of willful neglect is without merit. From the time of the service of the summons and complaint until the time of the motion to dismiss, counsel was engaged in negotiations with McPhee's insurer to settle the matter as to him (see, e.g., Rivera v. Shlagbaum, 204 A.D.2d 524).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.