DECISION AND ORDER
JAMES D. PAGONES, Judge.
It is hereby ordered that the order to show cause is decided as follows:
By way of background, defendant Synergix Funding Group, LLC, ("Synergix") moved to strike plaintiff's pleadings and defendant Christopher Mollica's cross-claim by Notice of Motion dated March 15, 2016. The motion was made returnable on April 14, 2016 at 9:30 a.m. Contained within the motion papers was a proposed order, granting said motion without opposition. On April 15, 2016, the Court after reviewing the submission signed the proposed order. Unbeknownst to the Court, plaintiff e-filed opposition papers to the motion on April 14, 2016 at 5:51 p.m.
Addressing the merits of the plaintiff's motion, the Court would initially note that a motion to reargue is not the proper vessel in which to move to vacate a default in opposing a motion, rather the motion will be considered pursuant to CPLR 5015(a)(1) (see Dobbyn-Blackmore v. City of New York, 123 A.D.3d 1083 [2
In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (id.). A motion to vacate a default is addressed to the sound discretion of the Supreme Court (see Dimitriadis v. Visiting Nurse Service of New York, 84 A.D.3d 1150 [2
In support of her motion to vacate, plaintiff's counsel alleges law office failure as a "reasonable excuse". Counsel states that "Believing that the motion return date was April 15, 2016, my office interposed opposition papers on April 14, 2016, at 5:51 PM . . . Unfortunately, the motion return date was April 14, 2016, one day earlier, and, as such, and upon information and belief, the Court either overlooked or did not consider Plaintiff's opposition papers."
Pursuant to CPLR 2214(b):
Accordingly, it would appear to this Court that counsel's "reasonable excuse" is completely unreasonable. In the event that motion return date was, as counsel thought, April 15, 2016, her opposition papers would still have been late. However, in the interests of justice and given the strong public policy in favor of resolution of matters on their merits, the Court will excuse the default in opposing the motion based upon law office failure (see CPLR §2005). Here, counsel's isolated incident of neglect in filing timely opposition to the motion should not deprive her client of her day in Court in the absence of prejudice to the opponent (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2005). Moreover, the moving plaintiff has demonstrated the existence of a potentially meritorious opposition to defendant Synergix's motion (see generally 1158 Properties, LLC v. 1158 McDonald, LLC, 104 A.D.3d 658 [2
Based upon the foregoing, the Court's order of April 15, 2016 is vacated to the extent that it struck plaintiff's pleadings. The balance of the order shall remain in full force and effect. The Court declines to sign the proposed judgment submitted by defendant Synergix on April 21, 2016. Counsel are directed to appear for a further compliance conference on
The foregoing constitutes the decision and order of the Court. This decision and order has been filed electronically.