FLEXRO LTD v. KORN

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

FLEXRO, LTD., respondent, v. Susan KORN, appellant.

Decided: July 26, 2004

MYRIAM J. ALTMAN, J.P., HOWARD MILLER, SANDRA L. TOWNES, and STEVEN W. FISHER, JJ. Smith Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Gair G. Betts of counsel), for appellant. Jack L. Glasser, P.C., Jamaica, N.Y., for respondent.

In an action, inter alia, for specific performance of a contract to sell real property, the defendant appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated May 14, 2003, which granted those branches of the plaintiff's motion which were, in effect, to vacate an order of the same court (Floyd, J.), dated July 18, 2002, granting, without opposition, the defendant's motion to dismiss the complaint and to cancel the notice of pendency filed October 31, 2001, and to vacate a judgment of the same court (Floyd, J.), entered September 26, 2002, dismissing the complaint, and thereupon, reinstated the action.

ORDERED that the order is reversed, on the facts and as a matter of discretion, with costs, those branches of the plaintiff's motion which were, in effect, to vacate the order dated July 18, 2002, and to vacate the judgment entered September 26, 2002, are denied, the complaint is dismissed, the notice of pendency filed October 31, 2001, is cancelled, and the order dated July 18, 2002, and judgment entered September 26, 2002, are reinstated.

 A party attempting to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense or claim (see Catanzaro v. Wallenstein, 7 A.D.3d 479, 775 N.Y.S.2d 572).   While the determination as to whether a party has established a reasonable excuse for a default lies within the sound discretion of the trial court, here the court improvidently exercised its discretion (see Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66) in accepting law office failure as a reasonable excuse.   The defendant demonstrated a pattern of willful default and neglect by the plaintiff.   Such conduct should not have been excused (see Lopez v. City of New York, 2 A.D.3d 693, 768 N.Y.S.2d 621;  Matter of Travelers Prop. Cas. Corp. v. Bocharova, 2 A.D.3d 533, 767 N.Y.S.2d 920;   Kaplinsky v. Mazor, 307 A.D.2d 916, 762 N.Y.S.2d 902;  Fort Madison Assocs. v. Caldararo, 280 A.D.2d 581, 720 N.Y.S.2d 808).   In addition, the plaintiff failed to establish a meritorious claim.   Thus, the Supreme Court improvidently exercised its discretion in vacating the plaintiff's default.

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