| Shin v ITCI, Inc. |
| 2014 NY Slip Op 01600 [115 AD3d 736] |
| March 12, 2014 |
| Appellate Division, Second Department |
| David Shin, Appellant, v ITCI, Inc., et al.,Defendant, and Kenney Lee, A.I.A., et al., Respondents. |
—[*1] Thomas Torto, New York, N.Y. (Jason Levine of counsel), for respondents.
In an action, inter alia, to recover damages for professional malpractice, the plaintiffappeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated July 3,2012, which granted that branch of the motion of the defendants Kenny Lee, A.I.A., andKenny Lee, doing business as Kenny Lee Architects, which was for leave to renew thatbranch of their prior motion which was pursuant to CPLR 5015 to vacate so much of anorder of the same court dated June 21, 2010, as granted the plaintiff's unopposed motionfor leave to enter a default judgment against those defendants, which branch was deniedin an order dated December 2, 2010, and, upon renewal, in effect, vacated that portion ofthe order dated December 2, 2010, and thereupon granted that branch of the prior motionof those defendants to the extent of granting them leave to interpose an answer to thecomplaint and precluding the plaintiff from enforcing a judgment entered August 30,2011, against those defendants until further order of the court.
Ordered that the order dated July 3, 2012, is affirmed, with costs.
A motion for leave to renew must be based upon new facts not offered on the priormotion which would change the prior determination, and must contain a reasonablejustification for the failure to present such facts on the prior motion (see CPLR2221 [e] [2]; Rose vLevine, 98 AD3d 1015 [2012]). However, "[t]he rule is not inflexible, andrenewal may be granted in the court's discretion, in the interest of justice, even on factsthat were known to the movant at the time of the original motion" (Eddine v Federated Dept. Stores,Inc., 72 AD3d 487, 487 [2010]; see Adzer v Rudin Mgt. Co., Inc., 50 AD3d 1070 [2008];Heaven v McGowan, 40AD3d 583 [2007]). Under the circumstances of this case, the Supreme Courtprovidently exercised its discretion in granting that branch of the motion of thedefendants Kenny Lee, A.I.A., and Kenny Lee, doing business as Kenny Lee Architects(hereinafter together the Lee defendants), which was for leave to renew that branch oftheir prior motion which was pursuant to CPLR 5015 to vacate so much of a prior orderof the same court as granted the plaintiff's unopposed motion for leave to enter a defaultjudgment against the Lee defendants.
Upon renewal, the Supreme Court also properly permitted the Lee defendants tointerpose an answer to the complaint and precluded the plaintiff from enforcing thedefault judgment [*2]entered August 30, 2011, pendingfurther order of the court. In moving pursuant to CPLR 5015 (a) (1) to vacate a default,the movant is required to demonstrate both a reasonable excuse for the default and apotentially meritorious defense to the action (see Kohn v Kohn, 86 AD3d 630 [2011]; Dimitriadis v Visiting Nurse Serv.of N.Y., 84 AD3d 1150 [2011]). The Supreme Court has the discretion to acceptlaw office failure as a reasonable excuse (see CPLR 2005). Here, the Leedefendants' principal affirmed that he retained prior counsel to oppose the plaintiff'smotion for leave to enter a default judgment, but that prior counsel nevertheless failed tooppose the motion, which was granted without opposition. Under such circumstances,the Supreme Court providently exercised its discretion in accepting this explanation as anexcusable default (see Kohn v Kohn, 86 AD3d at 630; Remote Meter Tech. of NY, Inc. vAris Realty Corp., 83 AD3d 1030 [2011]; Winthrop Univ. Hosp. v Metropolitan Suburban Bus Auth., 78AD3d 685 [2010]). The Lee defendants also demonstrated a potentially meritoriousdefense to the action (see generally Quis v Bolden, 298 AD2d 375 [2002]; see also Citibank, N.A. vSilverman, 85 AD3d 463 [2011]; Estate of Burke v Repetti & Co., 255AD2d 483 [1998]). In addition, there was no showing of prejudice to the plaintiff fromthe delay in answering, and no evidence of an intent by the Lee defendants to abandonany defenses to the action.
The plaintiff's remaining contentions are without merit. Eng, P.J., Balkin, Sgroi andCohen, JJ., concur.