LORIA v. PLESSER (1999)

In an action, inter alia, to recover damages for intentional infliction of emotional distress, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Underwood, J.), dated August 18, 1998, which denied his motion to (a) vacate a judgment entered upon his default in replying to a counterclaim, and (b) dismiss that counterclaim, and (2) an order of the same court dated February 8, 1999, which denied his motion for reargument.

 ORDERED that the appeal from the order dated February 8, 1999, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated August 18, 1998, is reversed, on the law and as a matter of discretion in the interest of justice, the motion is granted, and the counterclaim is dismissed;  and it is further,

ORDERED that the appellant is awarded one bill of costs.

 It is well settled that to vacate a default, a party must demonstrate the existence of a reasonable excuse and a meritorious defense (see, DeRisi v. Santoro, 262 A.D.2d 270, 691 N.Y.S.2d 111;  Schiller v. Sun Rock Bldg. Corp., 260 A.D.2d 566, 688 N.Y.S.2d 646;  Chavez v. Errico, 255 A.D.2d 353, 679 N.Y.S.2d 843).   Here, the plaintiff established that he was never served with the defendant's counterclaim which was interposed by a separate pleading several months after the defendant served his answer.   The uncontroverted evidence of nonreceipt constitutes a reasonable excuse for the plaintiff's failure to serve a reply to the counterclaim (see, Deshler v. East West Renovators, 259 A.D.2d 351, 687 N.Y.S.2d 65;  Drummond v. Petito, 253 A.D.2d 407, 677 N.Y.S.2d 133;  Executive Motor Car v. Allen, 211 A.D.2d 871, 621 N.Y.S.2d 212;  see also, Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116).

 Furthermore, the plaintiff established a meritorious defense to the defendant's counterclaim sounding in libel and slander because the counterclaim fails to recite the particular words complained of or identify to whom they were published (see, CPLR 3016[a];  Shapiro v. Central Gen. Hosp., 251 A.D.2d 317, 673 N.Y.S.2d 724;  Gill v. Pathmark Stores, 237 A.D.2d 563, 655 N.Y.S.2d 623;  Ott v. Automatic Connector, 193 A.D.2d 657, 598 N.Y.S.2d 10;  Farmelant v. City of New York, 187 A.D.2d 281, 590 N.Y.S.2d 411;  Horowitz v. Aetna Life Ins., 148 A.D.2d 584, 539 N.Y.S.2d 50).   This contention may be advanced for the first time on appeal because it raises a pure and dispositive issue of law discernible from the record (see, Green v. Fox Is. Park Autobody, 255 A.D.2d 417, 680 N.Y.S.2d 560;  Loiacono v. Goldberg, 240 A.D.2d 476, 658 N.Y.S.2d 138;  Gioia v. Gioia, 234 A.D.2d 588, 652 N.Y.S.2d 63;  Libeson v. Copy Realty Corp., 167 A.D.2d 376, 561 N.Y.S.2d 604).   Accordingly, insofar as the plaintiff made the requisite showing, his default should be vacated and the defendant's facially-deficient counterclaim must be dismissed (see, Wynne v. Wagner, 262 A.D.2d 556, 693 N.Y.S.2d 60;  Spells v. A & P Supermarkets, 253 A.D.2d 422, 675 N.Y.S.2d 310).

MEMORANDUM BY THE COURT.