Opinion
February 23, 1989
Appeal from the Supreme Court, New York County (Edith Miller, J.).
Counsel for the defendants attributes his delay in answering the complaint in this commercial matter to a backlog of transferred files during the dissolution of his small law firm, and also to his inability to give prompt attention to the matter in the aftermath of chemotherapy treatments he was enduring in treatment of an illness.
The IAS court deemed these excuses to be "law office failure" and denied defendants' motion to vacate the default, relying on the Barasch/Eaton rule that law office failure is insufficient to excuse a default. (Barasch v Micucci, 49 N.Y.2d 594; Eaton v Equitable Life Assur. Socy., 56 N.Y.2d 900.) However, that rule was overturned by the adoption of CPLR 2005 and amendment to CPLR 3012 in 1983, and "law office failure" does not now preclude the exercise of discretion to excuse a default.
Under the circumstances present here, where the initial delay was slight and the default was not intentional and where plaintiff has not demonstrated any prejudice, the explanation offered by defendants' counsel was sufficient to excuse the default. Since the defendants have also addressed the merits of their defenses, the default judgment should be vacated and defendants directed to serve an answer within 20 days.
Concur — Sullivan, J.P., Asch, Kassal and Ellerin, JJ.