| Remote Meter Tech. of NY, Inc. v Aris Realty Corp. |
| 2011 NY Slip Op 03573 [83 AD3d 1030] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Remote Meter Technology of NY, Inc., Respondent, v ArisRealty Corp. et al., Appellants. |
—[*1] Kenneth J. Glassman, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal froman order of the Supreme Court, Queens County (Grays, J.), dated February 22, 2010, whichgranted the plaintiff's motion for leave to enter a default judgment against them and set the matterdown for an inquest on damages, and denied their cross motion to vacate a prior order of thesame court dated October 29, 2009, granting the plaintiff's unopposed motion pursuant to CPLR3126 to strike their answer for failure to provide discovery.
Ordered that the order dated February 22, 2010, is reversed, on the law and in the exercise ofdiscretion, with costs, the plaintiff's motion for leave to enter a default judgment against thedefendants is denied, and the defendants' cross motion to vacate the order dated October 29,2009, is granted.
The plaintiff commenced this action against the defendants, inter alia, to recover damages forbreach of contract. Issue was joined by the service of an answer on or about March 27, 2008. Inan order dated October 30, 2008, the Supreme Court denied the plaintiff's motion for summaryjudgment, finding that there were issues of fact that required a trial. In an order dated October 29,2009, the Supreme Court granted the plaintiff's unopposed motion to strike the defendants'answer based on the defendants' failure to provide discovery. The plaintiff then moved for leaveto enter a default judgment, and the defendants cross-moved to vacate the October 29, 2009,order on the ground of excusable default. In a supporting affirmation, the defendants' attorneyexplained that it had been impossible for his office to comply with the plaintiff's discoverydemands because there had been a large fire in his office building that prevented him fromaccessing his files for months. The defendants' attorney further explained that he had appeared incourt on behalf of the defendants on the return date of the plaintiff's motion to strike the answer,at which time he had a discussion with the plaintiff's attorney in which he represented that hewould provide responses to the discovery demands within the next few weeks. The defendants'attorney asserted that it was his understanding that this would resolve the motion to strike theanswer, and he agreed that the plaintiff could enter a conditional order. The defendants' attorneystated that he did not know that [*2]the plaintiff was going tosubmit the motion to strike without opposition.
In order to vacate their default in opposing the motion to strike the answer, the defendantswere required to demonstrate a reasonable excuse for the default and a potentially meritoriousopposition to the motion (see CPLR 5015 [a] [1]; NY SMS Waterproofing, Inc. vCongregation Machne Chaim, Inc., 81 AD3d 617 [2011]; Campbell-Jarvis v Alves,68 AD3d 701, 702 [2009]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392[2008]). The determination of what constitutes a reasonable excuse lies within the trial court'sdiscretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394[2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]; Grutman v SouthgateAt Bar Harbor Home Owners' Assn., 207 AD2d 526, 527 [1994]), and the court has thediscretion to accept law office failure as a reasonable excuse (see CPLR 2005) where theclaim of law office failure is supported by a "detailed and credible" explanation of the default ordefaults at issue (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see Gironda vKatzen, 19 AD3d 644, 645 [2005]). Here, defense counsel provided a detailed and credibleexplanation for his failure to submit opposition papers on the return date of the plaintiff's motionto strike the answer, and the defendants demonstrated a potentially meritorious opposition to themotion to strike the answer. Accordingly, it was an improvident exercise of discretion for theSupreme Court to grant the plaintiff's motion for leave to enter a default judgment, and to denythe defendants' cross motion to vacate the prior order entered upon their default. Mastro, J.P.,Angiolillo, Balkin, Lott and Miller, JJ., concur.