Before the court is a motion brought by Doreen Stewart for an order pursuant to CPLR 5015 (a)(1) and (4) to vacate a default judgment in the form of a decree dated March 6, 2007. The decree dismissed movant's previous petition, dated October 26, 2006, on the basis of counsel's failure to appear at a court-ordered conference.

Arthur Willie Stewart died on January 12, 2004, a resident of Georgia, but owning real property in Nassau County. Decedent was survived by two sons, Damien Stewart and Bruce Stewart. Damien is listed as the informant on the death certificate, which was issued in Chatham County, Georgia. The death certificate reflects that decedent was divorced, a fact that is disputed by Doreen, who claims that she is decedent's surviving spouse, although not the mother of decedent's surviving sons.

On August 11, 2005, a creditor of decedent, CitiMortgage, Inc., filed a petition in Nassau County Surrogate's Court for the issuance of limited letters of administration to the Public [*2]Administrator or to Damien. The petition was filed to enable CitiMortgage, Inc. to commence a foreclosure proceeding in connection with a mortgage on decedent's real property located at 365 North Columbus Avenue, Freeport, New York.

On August 23, 2005, Doreen's attorney submitted a petition on her behalf as decedent's surviving spouse for letters of administration . The court advised Doreen's attorney by letter dated September 1, 2005 that additional information and documents were necessary to process Doreen's application. Four months later, on February 1, 2006, having not received the requested information and documents, the court returned the application and fee to counsel for petitioner.

Limited letters of administration were then issued to the Public Administrator on March 29, 2006, followed by an order dated October 4, 2006 in which the letters were modified to allow the Public Administrator to collect up to $340,000 without applying for an increase in the bond. The Public Administrator entered into a contract for the sale of the real property later that month.

On October 26, 2006, Doreen's attorney filed a motion which sought (1) the voiding of the sale of decedent's real property by the Public Administrator of Nassau County, (2) the revocation of letters of administration to the Public Administrator, and (3) the issuance of letters of administration to Doreen. The court issued an order to show cause on October 30, 2006, which stayed the transfer of title to decedent's real property. A hearing was held before the Surrogate on November 29, 2006, and a decision was rendered from the bench. The court found that Doreen had not met the burden of proof to establish all of the elements required to continue the temporary restraining order or to grant a preliminary injunction. The Surrogate then scheduled a hearing for January 10, 2007 to determine Doreen's status as the surviving spouse. Doreen's attorney stated that Doreen's status was irrelevant in view of the Surrogate's refusal to vacate the sale of decedent's real property. However, the attorney agreed to ask Doreen if she wanted to appear and said that he would advise the court on January 10th whether Doreen would proceed with the remaining two issues that had not yet been adjudicated, which were the revocation of the Public Administrator's limited letters of administration and the appointment of Doreen as administrator.

An order was prepared by counsel for the Public Administrator which vacated the temporary restraining order and directed the parties to appear at a conference on January 10, 2006 (the date should have read January 10, 2007). This order was settled on notice to the parties by personal service on December 1, 2006. No objection or counter-order was filed on behalf of Doreen or CitiMortgage, Inc. The order was signed on December 7, 2006. The signed order, with notice of entry, was served by mail on counsel for each party on December 8, 2006.

Doreen appealed to the Appellate Division to overturn the order. The appeal raised the issues of whether (1) the Surrogate properly denied Doreen's right to reply to answering papers filed by counsel for the Public Administrator and counsel for CitiMortgage, Inc. in connection with the hearing held on November 29, 2006, (2) such denial was prejudicial to appellant in the court's determination, and (3) the appellant should have been granted a preliminary stay pending final determination of her motion. The notice of appeal was served on all parties and filed in Surrogate's Court, bearing the date of January 5, 2006 (the date should have read January 5, 2007). On October 12, 2007, Doreen's attorney received an enlargement of time until November 9, 2007 to perfect this appeal. There is no indication in the records of the Surrogate's Court that the appeal was perfected.

On January 10, 2007, counsel for the Public Administrator appeared for the court-ordered conference. Counsel for Doreen did not appear. A transcript of the proceedings in Surrogate's [*3]Court that morning reflects that when Doreen's attorney did not appear, the Surrogate marked the matter on the calendar for second call. Doreen's attorney failed to appear when the matter was called a second time. The court then granted the Public Administrator's application to dismiss Doreen's petition for non-appearance of counsel, and directed the attorney for the Public Administrator to settle a decree.

Counsel for the Public Administrator settled a decree by mail on all parties on February 21, 2007. No objection or counter-order was filed. The decree dismissing Doreen's October 26, 2006 petition in its entirety was signed on March 6, 2007 and served by mail on Doreen's attorney with notice of entry on March 8, 2007.

An appeal dated April 9, 2007 was filed in the Appellate Division on Doreen's behalf asking whether this court exceeded its authority by dismissing Doreen's petition upon oral application without notice to petitioner and without proof that the non-appearance was willful, repetitive and contemptuous. The appeal was dismissed, with costs, on April 8, 2008 on the grounds that a decree dismissing a petition which was entered upon a default in appearing at a court-ordered conference is not appealable.

Movant is now seeking an order pursuant to CPLR 5015 (a)(1) and (4) to vacate the default judgment. This statute provides in relevant part that "[t]he court which rendered a judgment or order may relieve a party from it . . . upon the ground of:

1. excusable default . . . ; or

4. lack of jurisdiction to render the judgment or order . . . . "

The motion for an order pursuant to CPLR 5015 (a)(1) and (4) to vacate the default judgment raises the following issues:

1. Whether the court order dated December 7, 2006 was nullified by an error in the date set for the follow-up conference, thus voiding the court's jurisdiction to render a default judgment based upon counsel's non-appearance at the conference; and

2. Whether counsel's non-appearance at the conference on January 10, 2007 was not willful, and was an excusable default under CPLR 5105 (a)(1).

Movant argues that the default judgment should be vacated pursuant to CPLR 5015(a)(4) for lack of jurisdiction. Movant's attorney bases this argument on the error contained in the written order dated December 7, 2006 which stated the date of the court-ordered status conference as January 10, 2006 rather than January 10, 2007. However, counsel was present at the hearing on November 29, 2006 when the Surrogate scheduled the hearing for January 10th, and could have objected or filed a counter-order with the correct date after the proposed order was settled on notice to him on December 1, 2006. Subsequently, when the signed order with notice of entry was served on counsel on December 8, 2006, counsel could have contacted the court or opposing counsel for any necessary clarification.

The court notes that recording a date as though it falls in the year immediately prior to the current year is an error commonly seen in the weeks immediately preceding and following January 1st , when the calendar year changes. As noted above, the same error was made by counsel for movant in dating the first notice of appeal January 5, 2006 rather than the actual date, January 5, 2007. CPLR 2001 states, in part, that "[a]t any stage of an action, . . . the court may permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or [*4]irregularity shall be disregarded . . . ." Although a clerical error in recording a date may, in some situations, result in genuine confusion, the court notes that attorney for movant does not assert that this particular error was obfuscatory or resulted in prejudice to his client. The Court of Appeals recently held that a lower court "should have disregarded the clerical error . . ." where petitioner clearly understood what was actually intended (Tagliaferre v Weiler, 1 NY3d 605, 606 [2004]). Courts may disregard harmless errors (Mitchell v Shoals, Inc. 19 NY2d 338, 341 [1967]). The error in the order dated December 7, 2006 may be disregarded and does not nullify the court order or result in a lack of jurisdiction under CPLR 5015 (a)(4).

Movant further asserts that the default judgment should be vacated pursuant to CPLR 5015(a)(1), on the grounds that counsel's failure to appear at the court-ordered conference was not willful. To succeed under this section, a party must show both a reasonable excuse and a meritorious position in the underlying claim. (Kaplinsky v Mazor, 307 AD2d 908 [2d Dept. 2003]; O'Shea v Bittrolff, 302 AD2d 439 [ 2d Dept. 2003]; Westchester Med. Ctr. v ELRAC, Inc., 301 AD2d 518 [2d Dept. 2003]). Movant's attorney claims that his default was not willful because he believed that the conference was made moot by his filing a notice of appeal in connection with the order dated December 7, 2006. That order vacated the temporary restraining order and authorized the sale of decedent's real property. The purpose of the conference set for January 10, 2007 was not to address this issue, but rather, to determine petitioner's status as the surviving spouse and whether Doreen wished to proceed with her action to have the Public Administrator removed as administrator and Doreen appointed in his place. These issues would not have been affected by the filing or outcome of the appeal. The court does not find the proffered excuse to be sufficient to support vacatur of the default.

Consequently, the court need not address the second requirement of CPLR 5015 (a)(1), whether movant established a meritorious position. Paragraph 23 of the affirmation in opposition filed on behalf of the Public Administrator on April 16, 2008 states that the Public Administrator has completed collection of decedent's assets and expects to file a judicial accounting within the next few weeks. At that time, movant will have an opportunity to establish her status as decedent's surviving spouse and to raise any other claims she may have in connection with the estate.

For all of these reasons, the motion for an order pursuant to CPLR 5015 (a)(1) and (4) to vacate a default judgment is denied in its entirety.

This constitutes the decision and order of the court.

Dated: June 16, 2008

John B. Riordan

Judge of the

Surrogate's Court