ENERGY BRANDS INC v. LLP (2007)

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated December 21, 2005, which denied its motion to vacate an order of the same court dated January 31, 2005, granting the unopposed motion of the defendant Jaspan Schlesinger Hoffman, LLP, inter alia, for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff moved to vacate an order of the Supreme Court granting the unopposed motion of the defendant Jaspan Schlesinger Hoffman, LLP, inter alia, for summary judgment dismissing the complaint insofar as asserted against it.   A party seeking to vacate an order entered upon default is required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious cause of action or defense (see CPLR 5015[a][1];  Cooney v. Cambridge Mgt. & Realty Corp., 35 A.D.3d 522, 826 N.Y.S.2d 639;  Tyberg v. Neustein, 21 A.D.3d 896, 800 N.Y.S.2d 507;  Carnazza v. Shoprite of Staten Is., 12 A.D.3d 393, 783 N.Y.S.2d 834).

Contrary to the determination of the Supreme Court, the plaintiff submitted a reasonable excuse for its default (see Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109).   Nevertheless, the plaintiff was not entitled to vacatur, as it failed to demonstrate the existence of a potentially meritorious cause of action in opposition to the motion for summary judgment (see Krisztin v. State of New York, 34 A.D.3d 753, 823 N.Y.S.2d 919).

The plaintiff's remaining contention is without merit.