Capital One Bank v Roman

[*1] Capital One Bank v Roman 2007 NY Slip Op 51247(U) [16 Misc 3d 127(A)] Decided on June 21, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 21, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, DAVIS, JJ
570153/07.

Capital One Bank, Plaintiff-Respondent,

against

Hector Roman and Elsie Roman Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Howard H. Sherman, J.), entered April 26, 2005, which denied their motion, inter alia, to vacate a default judgment, and an order of the same court (Ben R. Barbato, J.), entered June 2, 2006, which denied their motion to renew the aforesaid order.

PER CURIAM:

Order (Ben R. Barbato, J.), entered June 2, 2006,
modified, without costs, and defendants' motion to vacate the default judgment is granted on condition that the judgment stand as security pending the disposition of the action. Appeal from order (Howard H. Sherman, J.), entered April 26, 2005, dismissed without costs, as academic.

We exercise our discretion and conditionally grant defendants' renewed motion to vacate their unintended default in answering the complaint (see Castillo v Garzon-Ruiz, 290 AD2d 288, 290 [2002]), in view of their showing, as yet uncontroverted, of a potentially meritorious defense, the absence of any legal prejudice to plaintiff as a result of the delay, and the strong public policy for resolving disputes on the merits (see Andino v DeJesus, 15 AD3d 259 [2005]). Since there is no indication in the record that a copy of the judgment with notice of entry was ever served upon defendants, the one-year time limitation set forth in CPLR 5015(a)(1) does not serve as a barrier to granting vacatur relief to defendants (see American Cont. Properties, Inc. v Lynn, 32 AD3d 700, 701 [2006], lv dismissed 7 NY3d 921 [2006]; Ackerson v Stragmaglia, 176 AD2d 602, 604 [1991]). Nor is the law of the case doctrine — invoked by the motion court — binding on this appellate court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 21, 2007