Ramos v Jake Realty Co.

[*1] Ramos v Jake Realty Co. 2010 NY Slip Op 50934(U) [27 Misc 3d 139(A)] Decided on May 25, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570057/10.

Octavio C. Ramos, Plaintiff-

against

Jake Realty Co. and Pine Management, Inc. Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered October 7, 2009, which denied his motion to vacate a default judgment dismissing his complaint.

Per Curiam.

Order (Jose A. Padilla, Jr., J.), entered October 7, 2009, reversed, without costs, motion granted and complaint reinstated.

While plaintiff's excuse for his failure to appear for trial was hardly overwhelming, under the particular circumstances here presented and in light of the policy favoring the resolution of actions on their merits, it was sufficient to warrant affording plaintiff vacatur relief. Plaintiff's attorney, while on vacation abroad, received a message from defense counsel requesting an adjournment of the trial date due to the unavailability of a defense witness. Plaintiff's attorney orally consented to the adjournment and, believing that defense counsel would obtain the adjournment, did not appear for trial. Notably, a letter from defense counsel to the court, which defense counsel shared with plaintiff's counsel, corroborates plaintiff's counsel's belief that defense counsel would seek the adjournment. Although the better practice would have been for plaintiff's counsel to appear for trial to confirm that the matter would be adjourned (and be prepared to go forward if the request for the adjournment was denied), we conclude that plaintiff's default was attributable to excusable law office failure (see generally Delagatta v McGillicuddy,31 AD3d 549 [2006]; Cannon v Ireland's Own, 21 AD3d 264 [2005]). Plaintiff also established a potentially meritorious claim against defendants through his verified pleadings (see Gironda v Katzen, 19 AD3d 644 [2005]; Key Bank, N.A. v NY Cent. Mut. Fire Ins. Co., 144 AD2d 847 [1988]). We note too that the Appellate Division, First Department previously concluded that numerous triable issues exist in this action precluding summary judgment in defendants' favor (Ramos v Jake Realty Co., 21 AD3d 744 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 25, 2010