SUPREME COURT OF THE STATE OF NEW YORK. Defendant. The followine papers have been read on this motion:

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1 SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice ROSANNA BALLI TRIAL/IAS PART 31 NASSAU COUNTY - against - Plaintiff Index No. : 18718/08 Motion Seq. No. : 02 Motion Date: 03/15/12 STEVEN BRANDT Defendant. The followine papers have been read on this motion: Notice of Motion. Affinnation. Affidavit. Memorandum of Law and Exhibits Affinnation in Opposition and Exhibits Affinnation in Reply Sur-Reply Papers Numbered Upon the foregoing papers, it is ordered that the motion is decided as follows: Plaintiff moves, pursuant to CPLR g 5015(a)(l), for an order vacating the default judgment that was entered against her on Februar , and, upon vacatur, restoring the matter to the trial calendar. Defendant opposes the motion. Plaintiffs counsel submits that plaintiffs lawsuit was dismissed for plaintiffs failure to timely appear on Februar 24, The Order was signed by the Honorable R. Bruce Cozzens Jr., ls.c. He adds that "(tjhe circumstances that led to the Order on Default were an a. Isolated instance of law office failure and b. was neither part of a pattern of dilatory behavior nor wilful

2 default or neglect, and c. Plaintiff attorney had Actual Engagement in another cour, and d. The Action is a Meritorious Action. The plaintiff was ready to proceed and available to the Court on Februar 24, I missed the calendar call by mere minutes...having appeared numerous times in this par, based on my previous experience with the Calendar Control Par the time of arrival would have been timely for the second call of the calendar. Obviously, I was wrong...the Defendant's attorney was aware that I, Plaintiffs counsel, was engaged in The District Court of Nassau County on a criminal matter and would most likely going to miss the first call of the CCP calendar....! respectfully request that the Cour excuse my one time failure, my tardiness and restore/reinstate the case to the Cour Calendar so we may proceed to trial on the merits. Plaintiff s counsel contends that plaintiff has a meritorious action based upon the fact that defendant's motion to dismiss said action was denied. He submits (tjhe Bon. Edward W. McCary, II in a Short Fonn Order, Dated March 24, 2011 stated that ' the complaint...might be deemed to state a cause of action for unjust enrichment (see, Stapleton v. Olsen, 69 AD2d 857. '" See Plaintiffs Affinnation in Support Exhibit D. Plaintiffs counsel adds that "(tjhe aforementioned case was on the calendar four previous times. Plaintiff s attorney was timely for all four previous appearances. Plaintiff, Rosana Balli was available or present at all calendared appearances...coop ownership and debt is the subject of the lawsuit. If this case is not reopened the plaintiff will be left in an untenable situation and the defendant wil be unjustly enriched. In opposition to the instant motion, defendant' s counsel argues that "(ojn or about Februar , this Honorable Court dismissed Plaintiffs action due to Plaintiffs counsel (sic) nonappearance at the second call ofthe trial calendar. Subsequently, two (2) days to one (1)

3 year since the dismissal Plaintiff's counsel now fies this motion seeking to restore the action back to the trial calendar with absolutelv no justification to this Honorable Court for the lenethy delay in seekine restoration other than being allegedly ' late' for second calendar call... At no time since the dismissal ofthis action as (sic) Plaintiffs counsel contact (sic) office of its intention to vacate the dismissal and restore this action to the court calendar nor did Plaintiff file a notice of appeal within thirt (30) days of the dismissal of the action. It is specious that Plaintiff s counsel fies this late motion to vacate towards the very end of the one (l) year automatic dismissal for failure to prosecute pursuant to N. Y. C. L.R 3404 based on an alleged tardiness by Plaintiffs counsel that occurred a year ago from the filing of Plaintiffs instant motion. " Defendant's counsel further contends that " (tjhe defendant wil be prejudiced by the late restoration of this action to the trial calendar as this action was filed over four (4) years ago in 2008 and dismissed approximately one (l) year ago as the Defendant has since maried and has moved on with his life. Defendant's counsel adds that " (ujpon infonnation and belief, Plaintiffs counsel has filed this motion to vacate the dismissal and restore this case back to the cour calendar with unclean hands based on the totality of the circumstances. Therefore, Defendant is entitled to sanctions against Plaintiffs counsel and his attorney fees for this frivolous, untimely and meritless motion. In reply to defendant' s opposition, plaintiffs counsel asserts that "(tjhe Motion to Reinstate was made within one year after the case was dismissed pursuant to 22NYCPLR202. (sic), in accordance with the rules and practices of the State of New York...

4 Relief under CPLR g 5015(a) is available where a par can demonstrate a reasonable excuse for the default and a showing of a meritorious cause of action/defense (emphasis added). See Eugene DiLorenzo, Inc. v. C. Dutton Lumber Co., Inc. 67 N. Y.2d N. 2d 8 (1986); Szilaski v. Aphrodite Const. Co., Inc. 247 A.D.2d 532, 669 N. 2d 297 (2d Dept. 1998). The requirements are not alternative requirements and both requirements must be met in order to vacate the default judgment. The determination of whether the circumstances of a paricular case constitute an excuse suffcient to support the vacatur of a default judgment is in the sound discretion ofthe Cour. See Hye- Young Chon v. Country- Wide Ins. Co. 22 AD. 3d 849, 803 N.Y.S.2d 699 (2d Dept. 2005); Harcztark v. Drive Variety, Inc. 21 AD.3d 876, 800 N.Y.S. 2d 613 (2d Dept. 2005); Bergdoll Pentecoste 17 A.D.3d 613, 794 N.Y.S.2d 78 (2d Dept. 2005). When viewing the moving papers in their best light, the Cour finds that plaintiffs counsel has demonstrated a reasonable excuse for the default and a meritorious cause of action. Additionally, plaintiffs counsel has made the instant motion within one year after service of a copy of the judgment or order with written notice of its entry upon the moving par. See CPLR g 5015(a)(1); Plaintiffs Affinnation in Support Exhibit B. On a motion to vacate a default, the trial cour has the discretion to accept law offce failure as a reasonable excuse, where the claim of law office failure is supported by a detailed and credible explanation of the default. See CPLR g 2005; Kohn v. Kohn 86 AD.3d Y.S.2d 55 (2d Dept. 2011); People s United Bank v. Latini Tuxedo Management LLC, 95 AD.3d 1285, 944 N. S.2d 909 (2d Dept. 2012); Diaz v. Chaudhry, 91 AD.3d d 901 (2d Dept. 2012); Winthrop University Hospital v. Metropolitan Suburban Bus Authority, 78 AD.3d685, 910 N. S.2d 159 (2d Dept. 2010).

5 The Cour additionally notes that justice disfavors defaults and prefers that issues be resolved on the merits. See Ahmadv. Aniolowisk 28 AD.3d N.Y.S.2d 666 (2d Dept. 2006); Moore v. Day, 55 AD. 3d 803, 866 N. Y.S. 2d 303 (2d Dept. 2008); Toll Brothers, Inc. V Dorsch 91 A. 3d 755, 936 N.Y.S.2d 576 (2d Dept. 2012). Accordingly, plaintiffs motion, pursuant to CPLR g 5015(a)(1), for an order vacating the default judgment that was entered against her on Februar is hereby GRANTED. And it is fuher ORDERED that the instant matter is hereby restored to the trial calendar and that all paries shall appear for Trial in Nassau County Supreme Cour, Differentiated Case Management Par (DCM) at 100 Supreme Cour Drive, Mineola, New York, on August , at 9:30 a. Defendant' s request for sanctions and attorney s fees, while not properly done in the form of a cross-motion, are, nevertheless, DENIED. This constitutes the Decision and Order of this Court. Dated: Mineola, New York July ENTERF=r JUL NAhAU COUN I ) COUNT CLIR', OP"Cf