| People's United Bank v Latini Tuxedo Mgt., LLC |
| 2012 NY Slip Op 04141 [95 AD3d 1285] |
| May 30, 2012 |
| Appellate Division, Second Department |
| People's United Bank, Appellant, v Latini TuxedoManagement, LLC, et al., Defendants, and Moulton Paving, LLC,Respondent. |
—[*1] Kunstlinger & Wohlgemuth, Spring Valley, N.Y. (Marc Wohlgemuth of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Orange County (Bartlett, J.), dated October 26, 2011, asdenied that branch of its motion which was, in effect, to vacate so much of an order of the samecourt dated September 26, 2011, as granted that branch of the cross motion of the defendantMoulton Paving, LLC, which was for leave to enter a default judgment on its counterclaimsagainst the plaintiff upon the plaintiff's failure to timely reply to the counterclaims.
Ordered that the order dated October 26, 2011, is reversed insofar as appealed from, on thefacts and in the exercise of discretion, with costs, and that branch of the plaintiff's motion whichwas, in effect, to vacate so much of the order dated September 26, 2011, as granted that branch ofthe cross motion of the defendant Moulton Paving, LLC, which was for leave to enter a defaultjudgment on its counterclaims against the plaintiff is granted.
In seeking to vacate a default, a party must establish both a reasonable excuse for its delay inanswering or appearing and a potentially meritorious defense (see CPLR 5015 [a] [1];Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Tribeca Lending Corp. v Correa, 92AD3d 770 [2012]; WestchesterMed. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 [2010]; Cooney v Cambridge Mgt. & RealtyCorp., 35 AD3d 522 [2006]). "Whether an excuse is reasonable is a determinationwithin the sound discretion of the Supreme Court" (Walker v Mohammed, 90 AD3d 1034, 1034 [2011]). Where a partyasserts law office failure, it must provide "a detailed and credible explanation of the default" (Kohn v Kohn, 86 AD3d 630, 630[2011] [internal quotation marks omitted]; see CPLR 2005; Matter of Esposito, 57 AD3d 894,895 [2008]).
The Supreme Court improvidently exercised its discretion in rejecting the plaintiff'sproffered excuse of law office failure, as the plaintiff provided a detailed and credibleexplanation that its approximately two-week delay in replying to the counterclaims assertedagainst it by the defendant Moulton Paving, LLC (hereinafter Moulton), resulted in part from itscounsel's inadvertent miscalendaring of the time to reply (see Simpson v Tommy HilfigerU.S.A., Inc., 48 [*2]AD3d 389, 392 [2008]; Franco Belli Plumbing & Heating & Sons,Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634, 636 [2007]). Further, the plaintiffset forth potentially meritorious defenses to the counterclaims (see Mandarin Trading Ltd. vWildenstein, 16 NY3d 173, 179 [2011]; Howard Sav. Bank v LefconPartnership, 209 AD2d 473, 476 [1994]).
Accordingly, the Supreme Court should have granted that branch of the plaintiff's motionwhich was, in effect, to vacate so much of an order dated September 26, 2011, as granted thatbranch of Moulton's cross motion which was for leave to enter a default judgment on itscounterclaims against the plaintiff. Rivera, J.P., Belen, Sgroi and Miller, JJ., concur.