Salemo v. Geller

—Orders, Supreme Court, New York County (Harold Tompkins, J.), entered February 9 and 11, 1998, which, respectively, denied the motion by defendants to vacate their default in appearing at a preliminary conference on December 3, 1997, and thereafter struck defendants’ answer for their failure to appear and set the matter for an inquest, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs or disbursements, and the answer reinstated. Under the circumstances herein, defendants submitted a reasonable excuse for their default. Thus, counsel asserted in his affirmation in support of the motion that his secretary was able to ascertain that the matter was not on the calendar the day the parties were scheduled to appear. Further, plaintiffs’ counsel does not dispute the fact that the case did not appear on the court’s printed calendar due to computer error. Further, defense counsel was actually engaged in a matter in the Second Department, thereby contributing to his failure to appear timely for the compliance conference. In addition, defendants have presented a meritorious defense to this action. Accordingly, since defendants have satisfied the two-prong burden of showing a meritorious defense and a reasonable excuse for the default (cf., Eisenstein v Rose, 135 AD2d 369, 370), the IAS Court improvidently exercised its discretion in refusing to vacate their default. Concur — Ellerin, P. J., Nardelli, Tom and Andrias, JJ.