People's United Bankv.Latini Tuxedo Management, LLC

Supreme Court, Appellate Division, Second Department, New York.May 30, 2012
944 N.Y.S.2d 909 (N.Y. App. Div. 2012)
944 N.Y.S.2d 90995 A.D.3d 12852012 N.Y. Slip Op. 4141

2012-05-30

PEOPLE'S UNITED BANK, appellant, v. LATINI TUXEDO MANAGEMENT, LLC, et al., defendants, Moulton Paving, LLC, respondent.

Benanti & Associates, Rye Brook, N.Y. (Jane Weisbecker Arnone of counsel), for appellant. Kunstlinger & Wohlgemuth, Spring Valley, N.Y. (Marc Wohlgemuth of counsel), for respondent.


Benanti & Associates, Rye Brook, N.Y. (Jane Weisbecker Arnone of counsel), for appellant. Kunstlinger & Wohlgemuth, Spring Valley, N.Y. (Marc Wohlgemuth of counsel), for respondent.


In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Orange County (Bartlett, J.), dated October 26, 2011, as denied that branch of its motion which was, in effect, to vacate so much of an order of the same court dated September 26, 2011, as granted that branch of the cross motion of the defendant Moulton Paving, LLC, which was for leave to enter a default judgment on its counterclaims against the plaintiff upon the plaintiff's failure to timely reply to the counterclaims.

ORDERED that the order dated October 26, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was, in effect, to vacate so much of the order dated September 26, 2011, as granted that branch of the cross motion of the defendant Moulton Paving, LLC, which was for leave to enter a default judgment on its counterclaims against the plaintiff is granted.

In seeking to vacate a default, a party must establish both a reasonable excuse for its delay in answering or appearing and a potentially meritorious defense ( see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;Tribeca Lending Corp. v. Correa, 92 A.D.3d 770, 938 N.Y.S.2d 599;Westchester Med. Ctr. v. Philadelphia Indem. Ins. Co., 69 A.D.3d 613, 892 N.Y.S.2d 484;Cooney v. Cambridge Mgt. & Realty Corp., 35 A.D.3d 522, 826 N.Y.S.2d 639). “Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court” ( Walker v. Mohammed, 90 A.D.3d 1034, 1034, 934 N.Y.S.2d 854). Where a party asserts law office failure, it must provide “a detailed and credible explanation of the default” ( Kohn v. Kohn, 86 A.D.3d 630, 630, 928 N.Y.S.2d 55 [internal quotation marks omitted]; see CPLR 2005; Matter of Esposito, 57 A.D.3d 894, 895, 870 N.Y.S.2d 109).

The Supreme Court improvidently exercised its discretion in rejecting the plaintiff's proffered excuse of law office failure, as the plaintiff provided a detailed and credible explanation that its approximately two-week delay in replying to the counterclaims asserted against it by the defendant Moulton Paving, LLC (hereinafter Moulton), resulted in part from its counsel's inadvertent miscalendaring of the time to reply ( see Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629; Franco Belli Plumbing & Heating & Sons, Inc. v. Imperial Dev. & Constr. Corp., 45 A.D.3d 634, 636, 845 N.Y.S.2d 446). Further, the plaintiff set forth potentially meritorious defenses to the counterclaims ( see Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 179, 919 N.Y.S.2d 465, 944 N.E.2d 1104;Howard Savs. Bank v. Lefcon Partnership, 209 A.D.2d 473, 476, 618 N.Y.S.2d 910).

Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was, in effect, to vacate so much of an order dated September 26, 2011, as granted that branch of Moulton's cross motion which was for leave to enter a default judgment on its counterclaims against the plaintiff.

RIVERA, J.P., BELEN, SGROI and MILLER, JJ., concur.