| 1158 Props., LLC v 1158 McDonald, LLC |
| 2013 NY Slip Op 01385 [104 AD3d 658] |
| March 6, 2013 |
| Appellate Division, Second Department |
| 1158 Properties, LLC, Appellant, v 1158McDonald, LLC, et al., Respondents, et al., Defendants. |
—[*1] Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Todd C.Steckler of counsel), for respondents.
In an action, inter alia, to foreclose a mortgage, the plaintiff appeals (1), as limited byits brief, from so much of an order of the Supreme Court, Kings County (Cutrona, J.),dated September 13, 2011, as granted that branch of the motion of the defendants 1158McDonald, LLC, Sandoony, USA, Inc., XO Bar & Grill, Inc., Israilov Enterprise, Inc.,and Ilhanan Israilov which was to vacate their default in opposing the plaintiff's motionfor summary judgment, and (2) from so much of an order of the same court datedFebruary 27, 2012, as denied that branch of its motion which was for leave to renew itsopposition to those defendants' motion to vacate their default.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
To vacate their default in opposing the plaintiff's motion for summary judgment onthe complaint, the moving defendants were required to demonstrate a reasonable excusefor their default and a potentially meritorious opposition to the motion (seeCPLR 5015 [a] [1]; Tsikotis vPioneer Bldg. Corp., 96 AD3d 936 [2012]; Roche v City of New York, 88 AD3d 978, 979 [2011]; Kohn v Kohn, 86 AD3d630, 630 [2011]; Casali vCyran, 84 AD3d 711, 711 [2011]). A motion to vacate a default is addressed tothe sound discretion of the Supreme Court (see Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d1150 [2011]). In exercising that discretion, the trial court may accept law officefailure as an excuse (see CPLR 2005), "where the claim of law office failure issupported by a 'detailed and credible' explanation of the default" (Kohn v Kohn,86 AD3d at 630, quoting Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d1030, 1032 [2011]; Winthrop Univ. Hosp. v Metropolitan Suburban Bus Auth., 78AD3d 685, 686 [2010]). Here, the moving defendants' claim of law office failurewas supported by a "detailed and credible" explanation of the default. Moreover, themoving defendants demonstrated the existence of a potentially meritorious opposition tothe plaintiff's motion. Accordingly, the Supreme Court providently exercised itsdiscretion in vacating their default in opposing the plaintiff's motion for summaryjudgment.[*2]
Furthermore, the Supreme Court properly deniedthat branch of the plaintiff's subsequent motion which was for leave to renew, since thenew facts offered on the motion would not have changed the prior determination (see Grossman v New York LifeIns. Co., 90 AD3d 990, 992 [2011]; Karten v Alvarez & Son Transp., Inc., 56 AD3d 528[2008]).
In view of our determination, we need not reach the plaintiff's remaining contention.Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.