| 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. |
| Halina Avery, Appellant, v Molly Caldwell, Respondent. |
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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.