Sedaghati v Mansouri

[*1] Sedaghati v Mansouri 2012 NY Slip Op 52142(U) Decided on November 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570739/12.

Natalie Sedaghati, Plaintiff-Respondent

against

Milene Mansouri, Defendant-Appellant.

Defendant appeals from an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Kibbie F. Payne, J.), dated December 28, 2010, which denied her motion to vacate a default judgment.

Per Curiam.

Order (Kibbie F. Payne, J.), dated December 28, 2010, reversed, without costs, motion granted, default judgment vacated, and matter remanded for further proceedings.

Considering the strong policy favoring resolution of cases on the merits (see Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]), we exercise our discretion to relieve defendant of her default where she demonstrated a meritorious defense to the underlying small claims action (as the trial court itself properly recognized) and a reasonable excuse for her default. With respect to the latter, the record shows that the pro se defendant, an attorney who maintains a solo practice, was genuinely unavailable to appear on the scheduled trial date due to her properly documented (and undisputed) engagement in another matter then being tried before a jury in Supreme Court, Queens County. Given the rigors and scheduling uncertainties commonly associated with trial proceedings, and the representation made by defendant below that she unsuccessfully sought permission to "leave early" from the Queens County proceeding on the day in question, her default in appearance at the 6:30 p.m. calendar call of the within New York County matter cannot be considered intentional or wilful.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: November 20, 2012