| Papandrea v Acevedo |
| 2008 NY Slip Op 07102 [54 AD3d 915] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Teresa Papandrea, Appellant, v Yahaira Acevedo,Respondent. |
—[*1] James G. Bilello, Westbury, N.Y. (Patricia McDonagh of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Miller, J.), dated February 11, 2008, which denied her motionfor leave to enter judgment against the defendant upon the defendant's default in appearing oranswering the complaint and granted the defendant's cross motion to compel her to accept ananswer.
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate his or her default in appearing or answering the complaintmust provide a reasonable excuse for the default and demonstrate the existence of a meritoriousdefense to the action (see CPLR 5015 [a] [1]; Krieger v Cohan, 18 AD3d 823 [2005]). The court has thediscretion to accept law office failure as a reasonable excuse (see CPLR 2005; White v Incorporated Vil. ofHempstead, 41 AD3d 709, 710 [2007]).
In a detailed affirmation, the defendant's attorney explained that he promptly prepared ananswer in response to the summons and complaint, but due to a clerical error the answer wasmailed to a former address of the plaintiff's counsel. The excuse of law office failure, which wascorroborated by a notarized affidavit of service indicating that the answer was timely mailed tothe wrong address, constituted a reasonable excuse for the default (see De Bartolo v De Bartolo, 46 AD3d739, 741 [2007]; Rockland Tr. Mix,Inc. v Rockland Enters., Inc., 28 AD3d 630, 630-631 [2006]; Troiano [*2]v Otsego Mut. Fire Ins. Co., 99 AD2d 719 [1984]).Furthermore, the defendant demonstrated that she has a potentially meritorious defense basedupon the issue of whether the plaintiff sustained a serious injury within the meaning of InsuranceLaw § 5102 (d) (see Marrache vAkron Taxi Corp., 50 AD3d 973, 974 [2008]; Cruz v Calderone, 49 AD3d 798 [2008]). Accordingly, theSupreme Court providently exercised its discretion in denying the plaintiff's motion for leave toenter a default judgment and granting the defendant's cross motion to compel the plaintiff toaccept her answer. Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ., concur.