American Television Syndication Co. v. La Marca Group, Inc. , 97 A.D.2d 372 ( 1983 )

Motion for leave to appeal to the Court of Appeals is likewise treated as a motion for reargument, and upon reargument the order of this court entered on June 9, 1983 (95 AD2d 987) is vacated, and a new order substituted therefor accompanied by a memorandum decision (see below), and leave to appeal to the Court of Appeals is denied. Order, Supreme Court, New York County (Clifford Scott, J.), entered November 13, 1982, which granted La Marca’s motion for default judgment to the extent of permitting O’Daly to serve an answer within 10 days after service of that order unanimously modified, on the law, on the facts, and in the exercise of discretion, by also permitting O’Daly to serve a reply within that 10-day period, and as modified, affirmed, without costs. In order to open a default, a party must show merit to his defense and a reasonable excuse for the delay. (Barasch v Micucci, 49 NY2d 594, 599.) Additional defendant and third-party defendant O’Daly has demonstrated merit to his case by, inter alia, averring that he acted in his corporate rather than in his individual capacity in his dealings with La Marca Group, Inc. O’Daly’s excuse for the default is both reasonable and acceptable. He erroneously believed that the reply of American Television Syndication Company, Inc., would and could constitute his answer to the third-party claim and his reply to the counterclaims. Orderly procedure requires O’Daly to serve his own answer and reply. Concur — Murphy, P. J., Ross, Asch, Kassal and Alexander, JJ.