Gazetten Contr., Inc. v HCO, Inc.

2007 NY Slip Op 08409 [45 AD3d 530]

November 7, 2007

Appellate Division, Second Department

As corrected through Wednesday, January 16, 2008

Gazetten Contracting, Inc., Respondent, v HCO, Inc.,Appellant. (And a Third-Party Action.)

—[*1]Anthony & Bernard, P.C., Bronx, N.Y. (Kelechi Amasike of counsel), for appellant.

Foreht Last Landau & Katz, LLP, New York, N.Y. (Richard S. Last of counsel), forrespondent.

In an action to recover damages for breach of contract, the defendant appeals from an order of theSupreme Court, Westchester County (Lefkowitz, J.), entered May 9, 2006, which denied itsmotion to vacate an order of the same court entered January 19, 2006, granting the plaintiff'smotion to strike the defendant's answer and for leave to enter a default judgment against it uponcounsel's failure to attend a court conference, and directing an inquest on the issue of damages.

Ordered that the order is affirmed, with costs.

In order to vacate an order striking its answer based upon its default in appearing for ascheduled conference before the court, the defendant herein was required to demonstrate both areasonable excuse for its failure to appear and a meritorious defense (see McClaren v Bell Atl., 30 AD3d569 [2006]; Kein v Zeno, 23AD3d 351 [2005]; Rubenbauer vMekelburg, 22 AD3d 826 [2005]). Although the court has the discretion to accept lawoffice failure as a reasonable excuse (see CPLR 2005), the defendant was required tosubstantiate the law office failure excuse with "detailed factual allegations" (see Grezinsky vMount Hebron Cemetery, 305 AD2d 542 [2003]; Eretz Funding v Shalosh Assoc.,266 AD2d 184, 185 [1999]). Here, the Supreme Court providently exercised its discretion inrejecting the defendant's excuse of law office failure as it was conclusory, undetailed, anduncorroborated (see McClaren v BellAtl., 30 AD3d 569 [2006]; Solomon v Ramlall, 18 AD3d 461 [2005]). Schmidt, J.P., Spolzino,Skelos, Lifson and McCarthy, JJ., concur.