Zolin v Edelman

[*1] Zolin v Edelman 2012 NY Slip Op 51604(U) Decided on August 28, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570971/11.

Donald M. Zolin, Plaintiff-Respondent,

against

Marsha Edelman, Defendant-Appellant.

Defendant appeals from (1) an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), entered September l, 2010, which denied her motion to vacate a default judgment, and (2) a judgment of the same court (Anil C. Singh, J.), entered on or about December 13, 2010, after inquest, in favor of plaintiff and awarding him damages in the principal sum of $19,499.

Per Curiam.

Order (Arthur F. Engoron, J.), entered September 1, 2010, reversed, with $10 costs, motion granted, default judgment vacated, and matter remanded for further proceedings. Appeal from judgment (Anil C. Singh, J.), entered December 13, 2010, dismissed, without costs, as nonappealable (see CPLR 5511).

Defendant's answer was stricken when her attorney was unavailable on the scheduled trial date (see 22 NYCRR 208.14[b][1]). Defendant's prompt motion for relief from the default should have been granted, where defense counsel's actual engagement in another court constituted a reasonable excuse for the default (see Fromartz v Bodner, 266 AD2d 122 [1999]; Abate v Long, 261 AD2d 252 [1999]) and this Court's prior affirmance of the denial of plaintiff's motion for summary judgment — a disposition predicated upon a determination that there exist triable issues of fact — was sufficient to establish a possible meritorious defense (see Medical Facilities v Pryke, 172 AD2d 338, 339 [1991]). Given the strong public policy favoring resolution of cases on the merits (see Ferguson v Hess Corp., 89 AD3d 599 [2011]), and the absence of any showing of willfulness on defendant's part in a case that had been actively litigated for some eight years, defendant's vacatur motion should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: August 28, 2012