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TERESA PAPANDREA, Appellant, v. YAHAIRA ACEVEDO, Respondent.

Ordered that the order is affirmed, with costs.

A defendant seeking to vacate his or her default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate the existence of a meritorious defense to the action ( see CPLR 5015 [a] [1]; Krieger v Cohan, 18 AD3d 823). The court has the discretion to accept law office failure as a reasonable excuse ( see CPLR 2005; White v Incorporated Vil. of Hempstead, 41 AD3d 709, 710).

In a detailed affirmation, the defendant's attorney explained that he promptly prepared an answer in response to the summons and complaint, but due to a clerical error the answer was mailed to a former address of the plaintiffs counsel. The excuse of law office failure, which was corroborated by a notarized affidavit of service indicating that the answer was timely mailed to the wrong address, constituted a reasonable excuse for the default ( see De Bartolo v De Bartolo, 46 AD3d 739, 741; Rockland Tr. Mix, Inc. v Rockland Enters., Inc., 28 AD3d 630, 630-631; Troiano v Otsego Mut. Fire Ins. Co., 99 AD2d 719). Furthermore, the defendant demonstrated that she has a potentially meritorious defense based upon the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) ( see Marrache v Akron Taxi Corp., 50 AD3d 973, 974; Cruz v Calderone, 49 AD3d 798). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs motion for leave to enter a default judgment and granting the defendant's cross motion to compel the plaintiff to accept her answer.

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PAPANDREA v. ACEVEDO
(Sep 23, 2008)