| Lyubomirsky v Lubov Arulin, PLLC |
| 2015 NY Slip Op 00851 [125 AD3d 614] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| Yan Lyubomirsky, Respondent, v LubovArulin, PLLC, et al., Appellants. |
Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Mark K. Anesh, LeeJ. Lefkowitz, and Jordan A. Ehrlich of counsel), for appellants.
Rosenberg Law, P.C. (Michelle S. Russo, Port Washington, N.Y., of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendants appeal from anorder of the Supreme Court, Kings County (Partnow, J.), dated March 11, 2014, whichgranted the plaintiff's motion to vacate a prior order of the same court dated December17, 2013, granting their unopposed motion pursuant to CPLR 3126 to strike thecomplaint for failure to comply with discovery demands.
Ordered that the order dated March 11, 2014, is affirmed, with costs.
A party seeking to vacate an order entered upon his or her failure to oppose a motionis required to demonstrate both a reasonable excuse for the default and the existence of apotentially meritorious opposition to the motion (see Bhuiyan v New York City Health & Hosps. Corp., 120AD3d 1284 [2014]; Garciav Shaw, 118 AD3d 943 [2014]; Oller v Liberty Lines Tr., Inc., 111 AD3d 903 [2013]). Thedetermination of what constitutes a reasonable excuse lies within the Supreme Court'sdiscretion, and will not be disturbed if the record supports such determination (see White v Incorporated Vil. ofHempstead, 41 AD3d 709, 710 [2007]). In making that discretionarydetermination, the court should consider relevant factors, such as the extent of the delay,prejudice or lack of prejudice to the opposing party, whether there has been willfulness,and the strong public policy in favor of resolving cases on the merits (see Oller vLiberty Lines Tr., Inc., 111 AD3d at 904; Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013]; Moore v Day, 55 AD3d803, 804 [2008]; Harcztarkv Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]).
Here, the Supreme Court providently exercised its discretion in excusing theplaintiff's default based upon his counsel's excuse of law office failure (see CPLR2004), given the minimal delay in moving to vacate the default, the lack of prejudice tothe defendants, and the lack of any intent to abandon the action (see Moore vDay, 55 AD3d at 804).
In addition, the plaintiff demonstrated a potentially meritorious opposition to the[*2]motion on the ground that the defendants failed tomake a clear showing that the plaintiff's failure to comply with the defendants' discoverydemands was willful and contumacious (see Oller v Liberty Lines Tr., Inc., 111AD3d at 904; Zakhidov vBoulevard Tenants Corp., 96 AD3d 737, 739 [2012]; Moray v City of Yonkers, 76AD3d 618, 619 [2010]).
The defendants' remaining contention is without merit. Rivera, J.P., Hall, Roman,Cohen and Barros, JJ., concur.