Guerrera v. Tooker

Guerrera v Tooker (2015 NY Slip Op 04276)

Guerrera v Tooker

2015 NY Slip Op 04276

Decided on May 20, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 20, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.

2014-02734
(Index No. 24429/10)

[*1]Salvatore Guerrera, respondent,

v

Marie Tooker, etc., appellant, et al., defendants.

Marie Tooker, Flanders, N.Y., appellant pro se.

Raymond R. Grasing, Smithtown, N.Y., for respondent.

DECISION & ORDER

In an action, inter alia, for the partition of real property, the defendant Marie Tooker appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated November 7, 2013, which granted the plaintiff's motion to vacate an order of the same court dated September 18, 2013, entered upon the plaintiff's default in appearing at pretrial conferences, directing the dismissal of the complaint insofar as asserted against her and awarding her judgment against the plaintiff on the issue of liability on her counterclaims, and to restore the action to the trial calendar.

ORDERED that the order dated November 7, 2013, is affirmed, with costs.

To vacate a default in appearing at a pretrial conference, a party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious cause of action or defense (see CPLR 5015[a][1]; Selechnik v Law Off. of Howard R. Birnbach, 120 AD3d 1220; Dobbins v Vartabedian, 23 AD3d 431). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" (Matter of Tsoukas v Tsoukas, 125 AD3d 872, 876). Here, the plaintiff demonstrated a reasonable excuse for his default in appearing on two pretrial conference dates, as well as potentially meritorious causes of action and defenses to the counterclaims asserted by the appellant.

The appellant's remaining contentions are without merit.

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to vacate the order dated September 18, 2013, entered upon the plaintiff's default, directing the dismissal of the complaint insofar as asserted against the appellant and awarding the appellant judgment against the plaintiff on the issue of liability on the appellant's counterclaims, and to restore the action to the trial calendar.

SKELOS, J.P., DICKERSON, MILLER and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court