IN RE: Application of Rocco BALDINI

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Rocco BALDINI, Petitioner-Respondent, v. NEW YORK CITY EMPLOYEES RETIREMENT SYSTEM, Respondent-Appellant.

Decided: October 20, 1998

Before LERNER, P.J., MILONAS, WALLACH and RUBIN, JJ. Harold Skovronsky, for Petitioner-Respondent. Marta Soja, for Respondent-Appellant.

Order (denominated an order and judgment), Supreme Court, New York County (Louis York, J.), entered July 3, 1997, which, inter alia, denied the motion of respondent-appellant New York City Employees Retirement System (hereinafter “NYCERS”) to vacate the default judgment entered against it on December 30, 1996, unanimously modified, on the law, the facts and in the exercise of discretion, vacatur of the default judgment granted, and otherwise affirmed, without costs.

 In order to vacate a default the moving party must demonstrate a meritorious defense and a reasonable excuse for the delay (Arias v. Sanchez, 227 A.D.2d 284, 642 N.Y.S.2d 669).   The courts have the discretion to consider law office failure as a reasonable excuse (CPLR 2005;  Lopez v. City of New York, 179 A.D.2d 388, 578 N.Y.S.2d 414).   Here, it was an abuse of discretion to reject NYCERS's answer when it was served nine days after the date set by the Court but two weeks before the scheduled argument date (Matter of Murray v. Matusiak, 247 A.D.2d 303, 669 N.Y.S.2d 278;  Matter of Kaufman v. Board of Education of the City School District of the City of New York, 210 A.D.2d 226, 619 N.Y.S.2d 753).   A proceeding to annul a determination by an administrative agency “ ‘should not be concluded in the petitioner's favor merely upon the basis of a failure to answer the petition on the return date thereof, unless it appears that such failure to plead was intentional and that the administrative body has no intention to have the controversy determined on the merits .’ ” (see, Matter of Glenbriar Co. v. New York City Conciliation & Appeals Bd., 93 A.D.2d 510, 513, 462 N.Y.S.2d 655 quoting Matter of Abrams v. Kern, 35 A.D.2d 971, 972, 317 N.Y.S.2d 971).   Further, disability retirement pensions should not be granted solely because of technical defaults by the Assistant Corporation Counsel that do not prejudice the petitioner (Simon Bank v. Board of Trustees of Police Pension Fund, 61 A.D.2d 954, 403 N.Y.S.2d 45).   There is no evidence in the record demonstrating a deliberate default by the respondent nor is there any showing of prejudice to petitioner.

While the Corporation Counsel's conduct in this matter was not wilful, contumacious or in bad faith (Ulloa v. City of New York, 193 A.D.2d 487, 597 N.Y.S.2d 386), the conduct was egregious and stretched the limit of law office failure as constituting excusable default.   Such conduct must not be condoned and, therefore, we do not disturb the sanctions and costs imposed by the trial court.

MEMORANDUM DECISION.