Petitioner commenced this commercial holdover action seeking to recover the commercial premises located at 333 South Fulton Avenue, Mt. Vernon, NY claiming that respondents are illegal occupants and that any license that may have been given to them by the former tenant has expired and/or has been revoked. By Decision and Order dated, September 3, 2014, the Court (J. Edwards) granted petitioner's motion for summary judgment of possession. The warrant of eviction was stayed until September 10, 2014 and the Court directed the parties to appear in court on September 15, 2014 [*2]at 1:30pm to be heard on petitioner's application for unpaid use and occupancy during the period of time the respondents occupied the apartment. On September 15, 2014, petitioner failed to appear and the Court denied petitioner's application for use and occupancy based upon petitioner's default in appearing. A judgment of possession and warrant issued on December 23, 2014.

Petitioner now moves to vacate the default judgment dismissing the claim for use and occupancy. Petitioner's counsel, David L. Hamill, states that petitioner missed the appearance on September 15, 2014 due to law office failure. He affirms that on July 21, 2014, counsel's firm relocated to the 1185 Sixth Avenue, New York, New York 10036. He affirms that the Decision and Order, dated September 3, 2014 was mailed to their old address and they did not received the forwarded mail until September 24, 2014. Counsel states that the firm inadvertently failed to file a change of address notice with this Court. Petitioner states that its failure to appear was neither willful nor part of a dilatory behavior, but was purely the result of inadvertent law office failure. Counsel further argues that they have a meritorious claim in that this Court has already determined that respondent wrongfully occupied the property without petitioner's permission or consent. Accordingly, petitioner seeks to vacate the default and restore the proceeding to the calendar.

Respondent opposes the motion claiming that petitioner has failed to demonstrate a meritorious case for use and occupancy. In support of this claim respondent has submitted various lease agreements claiming petitioner was already receiving rent for this property. The Court disagrees. It has already been established by the Supreme Court that petitioner has been the record owner of the property since 1973. It has also been established that respondents did not have an adverse possession claim to the property and have occupied the property illegally. Respondents have not provided any proof of payment to petitioner nor anyone else for use of the property.

CPLR 5015 states that "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just...upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party." A motion for leave to vacate a dismissal entered upon a default may be granted if the movant establishes that its default was excusable and that there is a meritorious cause of action (Barbagallo v Nationwise Exterminating & Deodorizing, Inc., 260 AD2d 518 (2d Dept 1999); Grutman v Southgate at Bar Harbor Home Owners' Assn., 207 AD2d 526 (2d Dept 1994)).

The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court, and in exercising this discretion, the trial court may accept law office failure as a reasonable excuse (Vasquez v New York City Housing Authority, 2008 Slip Op 4506; 2008 NY App. Div. LEXIS 4281 (2d Dept 2008); see also Grutman v Southgate at Bar Harbor Home Owners' Assn., supra, at 527)).

Based on the foregoing, the Court finds that the petitioner has established an excusable default and meritorious claim for use and occupancy. Accordingly, the default in appearing is vacated.

The parties are directed to appear on April 27, 2015 at 1:30pm for a hearing on [*3]use and occupancy.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion: Notice of Motion, dated October 14, 2014; Affirmation in Support; Exh. 1-6. Opposition Motion dated October 30, 2014; Exh. 1-5.