Espaillat v Greenpath, Inc.

[*1] Espaillat v Greenpath, Inc. 2005 NY Slip Op 51608(U) [9 Misc 3d 132(A)] Decided on October 5, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Suarez, P.J., Gangel-Jacob, Schoenfeld, JJ.


04-377Robert Espaillat, Plaintiff-Appellant, NY County Clerk's # 570580/04

against

Greenpath, Inc., Defendant-Respondent.

Plaintiff appeals from an order of Civil Court, New York County, entered August 24, 2004 (Analisa Torres, J.), which denied his motion to vacate a default judgment.

PER CURIAM:

Order entered August 24, 2004 (Analisa Torres, J.) reversed, with $10 costs, motion to vacate the default judgment granted and complaint reinstated.

Plaintiff has asserted a meritorious claim as well as a meritorious defense to the counterclaims, and has demonstrated he had no intention to abandon his defense to those counterclaims (see Goldman v Cotter, 10 AD3d 289, 291-292 [2004]). Public policy strongly favors resolution of disputes on their merits, especially where default results from law office failure of which the client may be unaware (CPLR 2005; Picinic v Seatrain Lines, 117 AD2d 504, 508 [1986]). There was no prejudice demonstrated from the brief delay between entry of the judgment and plaintiff's motion to vacate the default (see New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d 554 [2005]). Furthermore, plaintiff's failure to disclose, which was the subject of defendant's CPLR 3126 motion for sanctions, was not shown to be willful, contumacious or in bad faith (see Dauria v City of New York, 127 AD2d 459, 460 [1987]).

This constitutes the decision and order of the Court.
Decision Date: October 05, 2005