| Kohn v Kohn |
| 2011 NY Slip Op 06095 [86 AD3d 630] |
| July 26, 2011 |
| Appellate Division, Second Department |
| Leon Kohn, Appellant, v Relli Kohn,Respondent. |
—[*1] Barbara J. Strauss, Goshen, N.Y., for respondent.
Appeal by the plaintiff, as limited by his brief, from so much of an order of the SupremeCourt, Rockland County (Weiner, J.), dated June 21, 2010, as granted those branches of thedefendant's motion which were (a) to vacate a prior order of the same court granting that branchof his motion which was to direct that certain interest earned on funds deposited into an escrowaccount be paid to him upon the defendant's default in opposing his motion, and (b) to direct thatthe subject interest be paid to the defendant.
Ordered that the order is affirmed insofar as appealed from, with costs.
To vacate her default in opposing the plaintiff's motion, the defendant was required todemonstrate both a reasonable excuse for her default and a potentially meritorious opposition (see Remote Meter Tech. of NY, Inc. v ArisRealty Corp., 83 AD3d 1030 [2011]; Bazoyah v Herschitz, 79 AD3d 1081 [2010]). A motion to vacate adefault is addressed to the sound discretion of the Supreme Court (see Dimitriadis v Visiting Nurse Serv. ofN.Y., 84 AD3d 1150 [2011]). The Supreme Court has the discretion to accept law officefailure as a reasonable excuse (see CPLR 2005), where the claim of law office failure issupported by a "detailed and credible" explanation of the default (see Remote Meter Tech. of NY, Inc. v ArisRealty Corp., 83 AD3d 1030 [2011]; Winthrop Univ. Hosp. v Metropolitan Suburban Bus Auth., 78 AD3d685, 686 [2010]). Here, the defendant's claim of law office failure was supported by a"detailed and credible" explanation of the default, and the Supreme Court providently exercisedits discretion in accepting that explanation. Moreover, the defendant demonstrated the existenceof a potentially meritorious opposition to the plaintiff's motion.
Furthermore, the defendant demonstrated her entitlement to the subject interest and, thus,upon vacating the defendant's default, the Supreme Court properly granted that branch of thedefendant's motion which was to direct that the subject interest be paid to her (see CPLR5002; Aloi v Simoni, 82 AD3d683, 686 [2011]; Bartek v Draper, 309 AD2d 825, 826 [2003]).
The defendant's request for the counsel fees incurred in connection with the defense of thisappeal is not properly before this Court (see Taft v Taft, 135 AD2d 809, 810 [1987]), andis properly addressed in the first instance to the Supreme Court (see Kane v Rudansky,309 AD2d 785 [2003]).[*2]
The plaintiff's remaining contentions are without merit.Rivera, J.P., Florio, Austin and Cohen, JJ., concur.