The following papers numbered 1 to 7 read on this motion by defendant/third-party plaintiff Moberg & Associates, P.L.L.C. for an order vacating the order of this court dated June 12, 2012 which struck its answer

PAPERS

NUMBERED

Notice of Motion-Affidavits-Exhibits ...............................1-3

Answering Affirmations.....................................................4-6

Reply...................................................................................7

Upon the foregoing papers, it is hereby ordered that this motion by defendant/third-party plaintiff Moberg & Associates, P.L.L.C. ("Moberg"), for an order pursuant to CPLR § 5015 (a) (1), (3) vacating the June 12, 2012 order of this court, striking Moberg's answer for a second time, is granted on the condition that Moberg's attorney pay plaintiff's counsel the amount of Two Thousand Five Hundred ($2,500.00) Dollars in costs on or before January 4, 2013. This case shall be restored to the trial calendar on February 11, 2013.

This is an action to recover money damages from Moberg based upon allegations of conversion, unjust enrichment and breach of fiduciary duty committed by Moberg.

Moberg moves to vacate this court's second order striking its answer for failure to appear at trial. The first order dated April 13, 2011 (Schulman, J.), striking Moberg's answer was vacated, and the case was restored to the trial calendar for September 11, 2011, in a decision and order dated August 15, 2011 (Schulman, J.). The Court notes that this is the third time movant has sought to vacate its default in appearing at trial. This case has appeared on the trial calendar ten (10) times since the filing of the Note of Issue over two years ago on January 22, 2010. Now, Moberg, through its attorney, claims that they failed to appear on June 12, 2012, for the trial of this action, which had been marked "Final" by the Court, due to the illness of its counsel. In his moving affirmation, counsel for Moberg affirms in the third person that he "suffers from chronic hypertension and that on the morning of June 12, 2012 [he] began [to] experience severe headaches and when he checked his blood pressure it was very elevated to 200/15. As a result, counsel became alarmed and concerned for his health, and immediately sought medical attention at his physician's office who recommended that counsel rest for the day in order to allow the blood pressure to recede." Counsel's physician, Dr. Dunstan Pulle, in an undated document titled "Medical Affirmation in Support of Order to Show Cause (Exhibit M in Moberg's moving papers), "state [d] .......under penalties of perjury", the same explanation set forth by counsel as to his "absence from court on June 12, 2012"; Dr. Pulle characterized counsel's "absence" as a "medical emergency and.....not intentional". Dr. Pulle did not direct counsel to immediately go to a hospital, nor did he apparently [*2]prescribe medication. Moreover, neither Dr. Pulle nor Moberg's counsel specified when counsel appeared in Dr. Pulle's office location, nor do they "affirm" whether counsel was incapable of speaking that morning or afternoon.

It is well settled that a party seeking to vacate a default in appearing must demonstrate both a reasonable excuse for the default and a meritorious cause of action. See, CPLR § 5015(a)(1); Eugene DiLorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138; Murray v NYCHHC, 52 AD3d 792; Segovia v Delcon Constr. Corp., 43 AD3d 1143.

While law office failure may, under certain circumstances, provide a reasonable excuse so as to excuse a default, the case law is clear that where the record demonstrates a pattern of repeated defaults and neglect, it should be deemed intentional and the default should not be excused. See, e.g., State Farm Mutual Automobile Insurance Co. v. Cyriaque, See, Santiago v NY City Health & Hosps. Corp., 10 AD3d 393; Inc. Village of Hempstead v Jablonsky, 283 AD2d 553.

Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or it evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible. See, e.g., Dimitriadis v Visiting Nurse Service of New York, 84 AD3d 1150, 1151.

An attorney's illness has been held to be deemed "a reasonable excuse" for the vacatur of a party's default in appearing in court or in responding and participating in litigation. See, Mr. Ho Charter Service, Inc. v Ho, 94 AD3d 631, 632, [attorney assigned to case "was sick" and unable to attend the scheduled conference]; Berardo v Guillet, 86 AD3d 459, [attorney was so ill that he was unable to defend the motion]; Weitzenberg v Nassau Courty Department of Recreation and Parks, 29 AD3d 683, 685, [attorney's mental illness caused various defaults]; Zeltser v Sacerdote, 24 AD3d 541, 542, [trial counsel's wife emergency dental treatment].

While an attorney's or litigant's sudden elevated blood pressure would ordinarily be accepted by this Court as a reasonable excuse to appear before it, here there is absolutely no medical proof that counsel for Moberg's purported medical condition incapacitated him to such a degree that he could not call either the Court, his adversary, or his law office to inform them that he would not be able to appear, and why he could not appear as scheduled. Moreover, counsel has not explained why he did not call the Court or his adversary or his law office to inform the Court of his "medical emergency", nor has he explained why he did not ask a member of Dr. Pulle's staff to call on his behalf, or why he did not call the Court during the afternoon of June 12, 2012, to inform the Trial Scheduling Part of his illness. See, e.g., Mr. Ho Charter Service, Inc., v Ho, supra, [substitute attorney for "sick" attorney advised court that she would not be able to arrive to the conference by the scheduled time]; Matter of Cleveland W., 256 AD2d 1152, [respondent telephoned court on the adjourned date and said she was to ill to attend]; Pagan v Estate of Anglero, 22 AD3d 285, 287, [the neglectful manner in which counsel [*3]handles a matter entrusted to him should not rebound to plaintiff's detriment (citations omitted).]

Although the court does not accept counsel for Moberg's purported sudden illness as a reasonable excuse, in view of Moberg's showing of a meritorious defense, that defendant did not retain any of the funds which plaintiff claims defendant converted, and in light of this Court's previous finding on August 15, 2011, that Moberg demonstrated a potentially meritorious defense, and in view of the protracted history of this case and delays caused by defense counsel, the Court grants Moberg's motion to the extent that the order dated June 12, 2012, striking Moberg's answer is vacated on the condition that Moberg's attorney pays plaintiff's attorney, on or before January 4, 2013, the sum of Two Thousand Five Hundred ($2,500.00) Dollars in costs as compensation to plaintiff's attorney for the necessity of preparing opposition papers and appearing in court to oppose this motion. See, Pagan v Estate of Anglero, supra at 285; Booden v Penn-Attransco, 30 AD3d 334; Pinchas v Pinchas, 19 AD3d 673.

This action shall be restored to the trial calendar for a pre-trial conference on February 11, 2013, at 9:30 A.M.

The foregoing constitutes the decision and order of this Court.

Dated: November 28, 2012__________________________________

J. S. C.