| Madonna Mgt. Servs., Inc. v R.S. Naghavi M.D.PLLC |
| 2014 NY Slip Op 08965 [123 AD3d 986] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| Madonna Management Services, Inc.,Respondent, v R.S. Naghavi M.D. PLLC, Also Known as R.S. Neghavi, M.D.PLLC, et al., Appellants. |
Hirschel Law Firm, P.C., Garden City, N.Y. (Daniel Hirschel of counsel), forappellants.
The Odierno Law Firm, P.C., Melville, N.Y. (Joseph J. Odierno of counsel), forrespondent.
In an action, inter alia, to recover on an account stated, the defendants appeal from(1) so much of an order of the Supreme Court, Nassau County (Sher, J.), enteredNovember 4, 2013, as denied that branch of their motion which was pursuant to CPLR5015 (a) (1) to vacate an order of the same court dated June 5, 2013, granting theplaintiff's unopposed motion for leave to enter a default judgment against the defendantsin the principal sum of $65,220, and to restore the action to the trial calendar, and (2) ajudgment of the same court entered November 27, 2013, which, upon the order enteredNovember 4, 2013, is in favor of the plaintiff and against them in the total sum of$89,000.20.
Ordered that the appeal from the order entered November 4, 2013, is dismissed; andit is further,
Ordered that the judgment is reversed, on the facts and in the exercise of discretion,that branch of the defendants' motion which was pursuant to CPLR 5015 (a) (1) to vacatethe order dated June 5, 2013, and to restore the action to the trial calendar is granted, andthe order entered November 4, 2013, is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the appellants.
The appeal from the intermediate order entered November 4, 2013, must bedismissed because the right of direct appeal therefrom terminated with the entry ofjudgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issuesraised on the appeal from that order are brought up for review and have been consideredon the appeal from the judgment (see CPLR 5501 [a] [1]).
In an order dated March 14, 2013, the Supreme Court conditionally struck theanswer unless the defendants appeared for a conference on April 16, 2013. When thedefendants failed to appear for the conference on April 16, 2013, the court granted theplaintiff's application to strike the answer. Thereafter, the plaintiff moved pursuant toCPLR 3215 for leave to enter judgment against [*2]thedefendants for a sum certain. The defendants failed to oppose the plaintiff's motion, andthe motion was granted by order dated June 5, 2013.
To vacate the order dated June 5, 2013, entered upon their failure to oppose theplaintiff's motion, the defendants were required to demonstrate both a reasonable excusefor their default and a potentially meritorious defense to the motion (see CPLR5015 [a] [1]; Carillon Nursing& Rehabilitation Ctr., LLP v Fox, 118 AD3d 933, 934 [2014]; Schenk v Staten Is. Univ.Hosp., 108 AD3d 661, 662 [2013]; Caprio v 1025 Manhattan Ave. Corp., 63 AD3d 656, 657[2009]). The determination of what constitutes a reasonable excuse generally lies withinthe sound discretion of the trial court (see Santiago v New York City Health & Hosps. Corp., 10AD3d 393, 394 [2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569[1997]; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d526, 527 [1994]).
Here, the defendants have provided a "detailed and credible" explanation for theirfailure to appear at the scheduled conference (Henry v Kuveke, 9 AD3d 476, 479 [2004]; seeCPLR 2005; Gironda vKatzen, 19 AD3d 644, 645 [2005]). Miscommunications that occurred betweenthe defendants, the defendants' previous counsel, and the defendants' newly retainedattorney constituted a law office failure. Furthermore, the defendants have demonstrateda potentially meritorious defense. Accordingly, under the circumstances of this case, itwas an improvident exercise of discretion for the Supreme Court to deny that branch ofthe defendants' motion which was to vacate the order dated June 5, 2013, and to restorethe action to the trial calendar (see Infante v Breslin Realty Dev. Corp., 95 AD3d 1075[2012]; Remote Meter Tech. ofNY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]). Rivera, J.P., Hall,Austin, Miller and Maltese, JJ., concur.