Adolph H. Schreiber Hebrew Academy of Rockland, Inc., etc., plaintiff/counterclaim defendant-respondent, v. Scott Needleman, defendant/counterclaim plaintiff, Dorit Needleman, defendant/counterclaim plaintiff- appellant. (2011)

Submitted—November 30, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant/counterclaim plaintiff Dorit Needleman appeals from an order of the Supreme Court, Rockland County (Kelly, J.), entered July 5, 2011, which denied her motion for leave to enter a default judgment against the plaintiff/counterclaim defendant upon its failure to timely interpose a reply to her counterclaims, and granted the plaintiff/counterclaim defendant's cross motion, in effect, to vacate its default, and for leave to serve a late reply to the counterclaims.

ORDERED that the order is affirmed, with costs.

To prevail on a motion to vacate a default, a party is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense (see Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534;  Fekete v. Camp Skwere, 16 AD3d 544, 545;  Amato v. Fast Repair, Inc., 15 AD3d 429, 430;  Czarnik v. Urban, 10 AD3d 627).   The determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps.   Corp., 10 AD3d 393, 394;  Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569;  Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 A.D.2d 526, 527), and the trial court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005;  Henry v. Kuveke, 9 AD3d 476, 479;  see also Gironda v. Katzen, 19 AD3d 644, 645).

Here, the plaintiff/counterclaim defendant's attorney provided a credible explanation for his failure to timely serve a reply to the amended answer with counterclaims.   In addition, the delay was short, only 10 days, and was neither intentional nor a part of a pattern of neglect.   Moreover, the plaintiff/counterclaim defendant adequately demonstrated the existence of a potentially meritorious defense to the counterclaims asserted by the defendant/counterclaim plaintiff Dorit Needleman (hereinafter Needleman).   Accordingly, it was a provident exercise of discretion to deny Needleman's motion for leave to enter a default judgment on her counterclaims, and to grant the plaintiff/counterclaim defendant's cross motion, in effect, to vacate its default and for leave to serve a late reply to the counterclaims.

DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court