Hoskie Co., Inc. v Wu

Hoskie Co., Inc. v Wu 2013 NY Slip Op 08366 Decided on December 12, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 12, 2013
Mazzarelli, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Feinman, JJ.
11330N 653456/11

[*1]Hoskie Co., Inc., et al., Plaintiffs-Appellants,

v

Jeffrey Wu, et al., Defendants-Respondents.




Mann Mann & Schatz P.C., New York (Brett M. Schatz of
counsel), for appellants.
The Law Firm of Hugh H. Mo, P.C., New York (Hugh H. Mo of
counsel), for respondents.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered December 10, 2012, which, insofar as appealed from, in this action alleging, inter alia, breach of contract, granted defendants' motion to renew, and, upon renewal, vacated a default judgment previously entered against defendants, unanimously affirmed, without costs.

Plaintiffs' complaint overlapped a prior pending action in which some defendants were involved, and which was being defended actively by an entity that plaintiffs contend is the alter ego of defendants. Thus, a default against defendants should not have been granted by the original motion court here, particularly where the error was compounded by the lack of any party affidavit as to the alter-ego allegations. Accordingly, in light of the strong policy in favor of the resolution of disputes on the merits, the court did not abuse its discretion in finding this to be one of the instances in which the interest of justice was served by the grant of renewal and the vacatur of the default despite defendants' failure to timely respond to the original motion (see Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 12, 2013

CLERK