| Adolph H. Schreiber Hebrew Academy of Rockland, Inc. vNeedleman |
| 2011 NY Slip Op 09250 [90 AD3d 791] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Adolph H. Schreiber Hebrew Academy of Rockland, Inc.,Plaintiff/Counterclaim Defendant-Respondent, v Scott Needleman,Defendant/Counterclaim Plaintiff, and Dorit Needleman, Defendant/CounterclaimPlaintiff-Appellant. |
—[*1] Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (James P. Connors and Rebecca J.Waldren of counsel), for plaintiff/counterclaim defendant-respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant/counterclaimplaintiff Dorit Needleman appeals from an order of the Supreme Court, Rockland County (Kelly,J.), entered July 5, 2011, which denied her motion for leave to enter a default judgment againstthe plaintiff/counterclaim defendant upon its failure to timely interpose a reply to hercounterclaims, and granted the plaintiff/counterclaim defendant's cross motion, in effect, tovacate its default, and for leave to serve a late reply to the counterclaims.
Ordered that the order is affirmed, with costs.
To prevail on a motion to vacate a default, a party is required to demonstrate both areasonable excuse for its default and a potentially meritorious defense (see Hospital for Joint Diseases v DollarRent A Car, 25 AD3d 534 [2006]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]; Amato v Fast Repair, Inc., 15 AD3d429, 430 [2005]; Czarnik vUrban, 10 AD3d 627 [2004]). The determination of what constitutes a reasonableexcuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d393, 394 [2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997];Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527 [1994]),and the trial court has the discretion to accept law office failure as a reasonable excuse(see CPLR 2005; Henry vKuveke, 9 AD3d 476, 479 [2004]; see also Gironda v Katzen, 19 AD3d 644, 645 [2005]).
Here, the plaintiff/counterclaim defendant's attorney provided a credible explanation for hisfailure to timely serve a reply to the amended answer with counterclaims. In addition, the delaywas short, only 10 days, and was neither intentional nor a part of a pattern of neglect. Moreover,the plaintiff/counterclaim defendant adequately demonstrated the existence of a potentiallymeritorious defense to the counterclaims asserted by the defendant/counterclaim plaintiff [*2]Dorit Needleman (hereinafter Needleman). Accordingly, it was aprovident exercise of discretion to deny Needleman's motion for leave to enter a defaultjudgment on her counterclaims, and to grant the plaintiff/counterclaim defendant's cross motion,in effect, to vacate its default and for leave to serve a late reply to the counterclaims. Dillon, J.P.,Dickerson, Leventhal, Austin and Miller, JJ., concur.