LOVARIO v. VUOTTO (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated May 12, 1998, as granted that branch of the defendants' motion which was to vacate a purported order of the same court, dated April 16, 1998, granting the plaintiff's motion to strike the defendants' answer, (2) so much of an order of the same court, dated May 19, 1998, as denied that branch of their motion which was to strike the defendants' answer, and (3) an order of the same court, dated June 23, 1998, which denied their motion to compel the court to sign the purported order dated April 16, 1998.

ORDERED that the orders dated May 12, 1998, and May 19, 1998, are affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated June 23, 1998, is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

The defendants' demonstration of a valid excuse, based on law office failure, for their default in opposing a prior motion to strike their answer, and their demonstration of the existence of a meritorious defense, were sufficient to warrant an exercise of discretion in their favor (see, CPLR 5015[a][1];  2005;  see also, Alliance Prop. Mgt. & Dev. v. Andrews Ave. Equities, 70 N.Y.2d 831, 523 N.Y.S.2d 441, 517 N.E.2d 1327).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.