| SS Constantine & Helen's Romanian Orthodox Church of Am. v Z.Zindel, Inc. |
| 2007 NY Slip Op 07684 [44 AD3d 744] |
| October 9, 2007 |
| Appellate Division, Second Department |
| SS Constantine and Helen's Romanian Orthodox Church ofAmerica, Respondent, v Z. Zindel, Inc., Appellant. |
—[*1] Steven Louros, New York, N.Y., for respondent.
In an action, inter alia, to vacate a confession of judgment arising out of a promissory note onthe ground of fraud, the defendant appeals from so much of an order of the Supreme Court,Queens County (Schulman, J.), dated October 16, 2006, as granted the plaintiff's motion tovacate an order dated January 12, 2006, granting the defendant's motion for summary judgmentdismissing the complaint upon the plaintiff's default in opposing the motion.
Ordered that the order dated October 16, 2006, is affirmed insofar as appealed from, withcosts.
Pursuant to CPLR 5015 (a) (1), a court may vacate a default in opposing a motion where themoving party demonstrates both a reasonable excuse for the default and the existence of ameritorious defense to the motion (seeEnergy Brands, Inc. v Utica Mut. Ins. Co., 38 AD3d 591, 591-592 [2007]; Montefiore Med. Ctr. v Hartford Acc.& Indem. Co., 37 AD3d 673 [2007]). Whether an excuse is reasonable is adetermination within the sound discretion of the court (see Abrams v City of New York, 13 AD3d 566 [2004]; Carnazza v Shoprite of Staten Is., 12AD3d 393 [2004]). Under appropriate circumstances, a court has the discretion to accept lawoffice failure as a reasonable excuse (see Montefiore Med. Ctr. v Hartford Acc. & Indem.Co., 37 AD3d at 673; Rockland Tr.Mix, Inc. v Rockland Enters., Inc., 28 AD3d 630 [2006]).[*2]
Contrary to the defendant's contention, the SupremeCourt providently exercised its discretion in determining that the plaintiff provided a reasonableexplanation for its default in opposing the defendant's motion for summary judgment, as thefailure of the plaintiff's counsel to oppose the motion for summary judgment was isolated andunintentional with no evidence of willful neglect (see Montefiore Med. Ctr. v Hartford Acc.& Indem. Co., 37 AD3d at 673; Henry v Kuveke, 9 AD3d 476, 479 [2004]; cf. Gironda v Katzen, 19 AD3d644 [2005]). Furthermore, the plaintiff's submissions were sufficient to demonstrate theexistence of a meritorious defense to the motion. Crane, J.P., Florio, Lifson and Carni, JJ.,concur.