Avery v Caldwell
2008 NY Slip Op 08196 [55 AD3d 473]
October 28, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 10, 2008


Halina Avery, Appellant,
v
Molly Caldwell, Respondent.

[*1] Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.

Gibson, Dunn & Crutcher LLP, New York (D. Cameron Moxley of counsel), for respondent.

Order, Supreme Court, New York County (Leland G. DeGrasse, J.), entered June 13, 2007, which granted defendant's motion to vacate a default judgment, unanimously affirmed, without costs.

A reasonable excuse for the default is demonstrated by the affirmations of defendant's attorney and his physician, which together are adequate to show that illness prevented the attorney from preparing an answer over the period of delay (see Embraer Fin. Ltd. v Servicios Aereos Profesionales, S.A., 42 AD3d 380 [2007]). Defendant has put forward a meritorious defense in its proposed verified answer and accompanying documents (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774 [2000]). We reject plaintiff's alternative argument that the defendant's attorney's performance of various legal services, including contacting the court's Clerk to request additional time to submit a proposed counter-default judgment, constituted opposition to the motion for a default judgment requiring an appeal therefrom rather than a motion to vacate (cf. Achampong v Weigelt, 240 AD2d 247 [1997]). Concur—Tom, J.P., Saxe, Williams, Catterson and Moskowitz, JJ.