                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 16, 2015                    519622
________________________________

WHITNEY LANE HOLDINGS, LLC,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
DON REALTY, LLC, et al.,
                    Respondents.
________________________________


Calendar Date:   February 20, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


      McHale Law Firm, New York City (Paul Burg of counsel), for
appellant.

      E. Stewart Jones Hacker Murphy, Latham (Ryan M. Finn of
counsel), for respondents.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (Ferradino, J.),
entered May 16, 2014 in Saratoga County, which granted
defendants' motion to vacate a prior order of the court.

      This action involves a dispute about a commercial real
estate transaction. Alleging noncompliance with some of its
discovery demands, plaintiff moved for a preclusion order and to
strike defendants' answer. Defendants did not submit any papers
in opposition and, accordingly, Supreme Court granted the motion.
Defendants promptly moved to vacate the order asserting, among
other things, that they had not been served with plaintiff's
motion papers and that they had already substantially complied
with the disputed discovery demands. Supreme Court granted
defendants' motion and plaintiff now appeals.
                              -2-                  519622

      We affirm. To vacate their default in failing to oppose
the motion, defendants were "required to demonstrate a reasonable
excuse for the default and a potentially meritorious opposition
to the motion" (Remote Meter Tech. of NY, Inc., v Aris Realty
Corp., 83 AD3d 1030, 1032 [2011]; see Wood v Tuttle, 106 AD3d
1393, 1394 [2013]). "Supreme Court's decision on a motion to
vacate a default will only be disturbed in the event of an abuse
of discretion" (Aaron v Carter, Conboy, Case, Blackmore,
Napierski & Maloney, P.C., 12 AD3d 753, 754-755 [2004] [citation
omitted]). Here, Supreme Court credited defendants' explanation
for their failure to respond to plaintiff's preclusion motion,
which included a lack of service upon them of the motion and a
miscommunication regarding discovery that had already been
provided. The court further found potential merit in defendants'
opposition to the motion since defendants had apparently provided
plaintiff's former counsel with 10 boxes of records, which
defendants asserted encompassed the current demands by plaintiff.
Supreme Court did not abuse its discretion in vacating the order,
and its decision is also consistent with the preference for
resolving cases on the merits (see Gurin v Pogge, 112 AD3d 1028,
1030 [2013]).

     Garry, Rose and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
