Opinion

Brown v. Ryder Truck Rental, Inc.

  • 172 A.D.2d 477
  • 567 N.Y.S.2d 831
  • 1991 N.Y. App. Div. LEXIS 4290
Court
Appellate Division of the Supreme Court of the State of New York
Filed
Apr 1, 1991
Status
Published
Cited by
11 cases
Authority
More cited than 88.3%

The opinion

In an action to recover damages for personal injuries, etc., the defendant Ryder Truck Rental, Inc., appeals from an order of the Supreme Court, Kings County (Vaccaro, J.), dated June 6, 1989, which granted the plaintiffs’ motion to vacate their default in appearing at a conference, and reinstated their complaint.

Ordered that the order is affirmed, with costs.

It is within the discretion of the trial court "in the interests of justice to excuse delay or default resulting from law office failure” (CPLR 2005). A court will vacate such a default upon a showing of a meritorious cause of action, a justifiable excuse for the default and absence of willfulness (see, Goldstein Affiliates v Len Art Knitting Corp., 75 AD2d 551 ). In the matter at bar, the plaintiffs’ counsel submitted an affidavit explaining how a clerical oversight, constituting law office failure, had caused the default at issue, while one of the plaintiffs submitted an affidavit of merit. In a proper exercise of its discretion, the trial court concluded that this showing was sufficient (cf., Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693 ). Thompson, J. P., Kunzeman, Eiber and Rosenblatt, JJ., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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