ROCKLAND TRANSIT MIX INC v. ROCKLAND ENTERPRISES INC (2006)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered October 13, 2004, which, in effect, denied its motion to vacate an order of the same court dated March 29, 2004, granting the defendants' separate motions for summary judgment dismissing the complaint upon its default in opposing the motions.

ORDERED that the order entered October 13, 2004, is reversed, on the law, with one bill of costs, the motion to vacate the order dated March 29, 2004, is granted, the order dated March 29, 2004, is vacated, the complaint is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for a new determination of the defendants' motions for summary judgment on the merits following submission of opposition papers by the plaintiff.

 Pursuant to CPLR 5015(a), a court may vacate a default where the moving plaintiff demonstrates both a reasonable excuse for the default and the existence of a meritorious cause of action (see Hageman v. Home Depot USA, 25 A.D.3d 760, 808 N.Y.S.2d 763;  Liotti v. Peace, 15 A.D.3d 452, 453, 790 N.Y.S.2d 512;  Waste Mgt. of N.Y. v. Bedford-Stuyvesant Restoration Corp., 13 A.D.3d 362, 785 N.Y.S.2d 543;  Fine v. Fine, 12 A.D.3d 399, 400, 786 N.Y.S.2d 57).   The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005;  Navarro v. Trenkman Estate, 279 A.D.2d 257, 258, 719 N.Y.S.2d 34;  cf. Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66).

 The plaintiff offered as an excuse for its default the failure of a clerk from its attorney's office to file and serve opposition papers, which had been timely prepared.   This was an isolated incident, and there was no evidence that the default was willful (see Hageman v. Home Depot USA, supra;  Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109;  Liotti v. Peace, supra;  Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114).   Moreover, the plaintiff arguably has a meritorious opposition to the motions for summary judgment (see Goepel v. City of New York, 23 A.D.3d 344, 345-346, 804 N.Y.S.2d 95;  Carter v. Gospel Temple Church of God in Christ, 19 A.D.3d 353, 354, 796 N.Y.S.2d 417;  Casolino v. Baynes, 157 A.D.2d 699, 700, 549 N.Y.S.2d 797;  Baldwin v. Brooks, 83 A.D.2d 85, 89, 443 N.Y.S.2d 906).   Accordingly, the Supreme Court improvidently exercised its discretion in denying the motion.

The plaintiff's remaining contentions are not properly before this court.