HAGEMAN v. (and a third-party action).

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

Daniel HAGEMAN, appellant, v. HOME DEPOT U.S.A., INC., respondent. (and a third-party action).

Decided: January 31, 2006

HOWARD MILLER, J.P., STEPHEN G. CRANE, PETER B. SKELOS, and MARK C. DILLON, JJ. Edelman Krasin & Jaye, PLLC (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harold Lee Schwab and Steven B. Prystowsky of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated June 28, 2004, as granted that branch of the defendant's renewed motion to vacate an order of the same court dated December 3, 2002, granting the plaintiff's motion to strike the defendant's answer upon the defendant's default in opposing the motion and, upon renewal, inter alia, vacated the order and reinstated the answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 To prevail on a motion to vacate, a defendant must demonstrate both a reasonable excuse for its default and a meritorious defense (see Amato v. Fast Repair, 15 A.D.3d 429, 430, 790 N.Y.S.2d 510;  Czarnik v. Urban, 10 A.D.3d 627, 781 N.Y.S.2d 610;  Taylor v. Saal, 4 A.D.3d 467, 771 N.Y.S.2d 671;  Searing v. Anand, 127 A.D.2d 582, 583, 511 N.Y.S.2d 382).   The determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Grutman v. Southgate At Bar Harbor Home Owners' Assn., 207 A.D.2d 526, 527, 616 N.Y.S.2d 68;  Perellie v. Crimson's Rest., 108 A.D.2d 903, 485 N.Y.S.2d 789;  Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 780 N.Y.S.2d 764).

Under the circumstances of this case, the excuse of law office failure proffered by the defendant was reasonable (see Norowitz v. Ponconco, Inc., 96 A.D.2d 581, 465 N.Y.S.2d 276;  cf. Solovay v. Paone Corp., 219 A.D.2d 462, 645 N.Y.S.2d 769) and was supported by detailed and credible submissions explaining the defendant's delays in responding to the plaintiff's discovery demands and in complying with court orders mandating discovery, as well as its failure to oppose the plaintiff's motion to strike its answer (see Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114;  Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109).   Although the defendant's defaults were more than isolated incidents, it cannot be said, based on the evidence presented, that they constituted a pattern of willful default and neglect (see Gironda v. Katzen, supra;  cf. Santiago v. New York City Health & Hosps. Corp., supra;  Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66).   Moreover, the record sufficiently established the existence of a possible meritorious defense (see Brown v. Brause Plaza, LLC, 19 A.D.3d 626, 628-629, 798 N.Y.S.2d 501;  Castillo v. Starrett City, 4 A.D.3d 320, 321-322, 772 N.Y.S.2d 74;  Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 622, 769 N.Y.S.2d 559).   Accordingly, the court providently exercised its discretion in granting the defendant's renewed motion and in vacating its prior order and reinstating the defendant's answer.

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