Liotti v. Peace
| Decision Date | 14 February 2005 |
| Docket Number | 2003-10885. |
| Citation | 15 A.D.3d 452,2005 NY Slip Op 01169,790 N.Y.S.2d 512 |
| Parties | THOMAS F. LIOTTI, Respondent, v. ERNEST J. PEACE, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted and the order dated August 13, 2003, is vacated.
A party seeking to vacate a default is required to demonstrate both a reasonable excuse for the default and a meritorious cause of action or defense (see CPLR 5015 [a] [1]). It is within the discretion of the Supreme Court, in the interest of justice, to excuse a default resulting from law-office failure (see CPLR 2005). Under the circumstances of this case, the defendant Ernest J. Peace established a reasonable excuse that he mistakenly diaried the place of the pretrial conference (see CPLR 2005; Crystal Run Sand & Gravel v Milnor Constr. Corp., 301 AD2d 491 [2003]). This was an isolated incident of non-appearance (see Kingsland Group v Satcin Realty Corp., 287 AD2d 440 [2001]), and there was no evidence that the default was willful (see Beizer v Funk, 5 AD3d 619 [2004]). Moreover, Peace arguably has a meritorious defense (see Gross v New York Times Co., 82 NY2d 146, 152-54 [1993]). Accordingly, the Supreme Court improvidently exercised its discretion in denying the motion.
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