Papandrea v. Acevedo
| Decision Date | 23 September 2008 |
| Docket Number | No. 2008-02467,2008-02467 |
| Citation | 2008 NY Slip Op 7102,54 A.D.3d 915,864 N.Y.S.2d 138 |
| Parties | TERESA PAPANDREA, Appellant, v. YAHAIRA ACEVEDO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate his or her default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate the existence of a meritorious defense to the action (see CPLR 5015 [a] [1]; Krieger v Cohan, 18 AD3d 823 [2005]). The court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005; White v Incorporated Vil. of Hempstead, 41 AD3d 709, 710 [2007]).
In a detailed affirmation, the defendant's attorney explained that he promptly prepared an answer in response to the summons and complaint, but due to a clerical error the answer was mailed to a former address of the plaintiff's counsel. The excuse of law office failure, which was corroborated by a notarized affidavit of service indicating that the answer was timely mailed to the wrong address, constituted a reasonable excuse for the default (see De Bartolo v De Bartolo, 46 AD3d 739, 741 [2007]; Rockland Tr. Mix, Inc. v Rockland Enters., Inc., 28 AD3d 630, 630-631 [2006]; Troiano v Otsego Mut. Fire Ins. Co., 99 AD2d 719 [1984]). Furthermore, the defendant demonstrated that she has a potentially meritorious defense based upon the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Marrache v Akron Taxi Corp., 50 AD3d 973, 974 [2008]; Cruz v Calderone, 49 AD3d 798 [2008]). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion for leave to enter a default judgment and granting the defendant's cross motion to compel the plaintiff to accept her answer.
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