Opinion
2012-08-8
Shaune MUIR, appellant, v. Nakia S. COLEMAN, etc., respondent.
Brian M. Levy, New York, N.Y., for appellant.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated November 18, 2011, which granted the defendant's motion pursuant to CPLR 5015 to vacate his default in failing to comply with certain court orders.
ORDERED that the order is affirmed, without costs or disbursements.
To vacate his default, the defendant was required to demonstrate a reasonable excuse for the default and a potentially meritorious defense ( see Infante v. Breslin Realty Dev. Corp., 95 A.D.3d 1075, 944 N.Y.S.2d 608;Swensen v. MV Transp., Inc., 89 A.D.3d 924, 925, 933 N.Y.S.2d 96;L & L Auto Distribs. & Suppliers Inc. v. Auto Collection, Inc., 85 A.D.3d 734, 925 N.Y.S.2d 151). A court may, in its discretion, accept a claim of law office failure as satisfying the reasonable excuse requirement ( see CPLR 2005; Goldstein v. Meadows Redevelopment Co Owners Corp. I, 46 A.D.3d 509, 511, 846 N.Y.S.2d 384). Here, the defendant demonstrated that his default in complying with certain court orders was due to law office failure. Contrary to the plaintiff's contention, the defendant's conduct in relying on the representations of his former counsel did not constitute a willful default or neglect under the circumstances of this case ( see Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109;Belesi v. Gifford, 269 A.D.2d 552, 703 N.Y.S.2d 753;cf. Bazoyah v. Herschitz, 79 A.D.3d 1081, 1082, 913 N.Y.S.2d 769). Further, the defendant demonstrated a potentially meritorious defense ( see Karamuco v. Cohen, 90 A.D.3d 998, 934 N.Y.S.2d 855;cf. Swensen v. MV Transp., Inc., 89 A.D.3d at 925, 933 N.Y.S.2d 96).
The plaintiff's remaining contention is without merit.