Hernandez v Stolzenberg

[*1] Hernandez v Stolzenberg 2016 NY Slip Op 50944(U) Decided on June 20, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Lowe, III, Ling-Cohan, JJ.
16-218

Maritza Hernandez, Plaintiff-Respondent,

against

Sol S. Stolzenberg, D.M.D. d/b/a Toothsavers, s/h/a Toothsavers d/b/a Universal Dental Center, Defendant-Appellant.

Defendant appeals from an order of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered July 30, 2015, which granted plaintiff's motion to vacate her default in opposing defendant's prior motion for summary judgment and, upon vacatur, permitted plaintiff to withdraw her complaint, "without prejudice."

Per Curiam.

Order (Ruben Franco, J.), entered July 30, 2015, affirmed.

We find no abuse of discretion in the grant of plaintiff's motion to vacate her default in opposing defendant's summary judgment motion. The default was the result of plaintiff's misapprehension that the underlying small claims action had been effectively discontinued, so that she could pursue a claim against defendant in Supreme Court (see Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832 [2009]). In addition, assuming that defendant's summary judgment motion was properly entertained in small claims court (see Friedman v Seward Park Hous. Corp., 167 Misc 2d 57, 58 [1995]), plaintiff established a potentially meritorious opposition to the motion, through the affidavit of her dental expert (see Barton v Executive Health Examiners, 277 AD2d 27, 28 [2000]). In the circumstances, and in view of the general policy favoring resolution of disputes on the merits (see DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [2011]), we cannot say that Civil Court improvidently exercised its discretion in vacating the dismissal.

It is also within a court's discretion to allow plaintiff to voluntarily discontinue the action so that she could pursue a claim against defendant for the same relief in another forum (see Parraguirre v 27th St. Holding, LLC, 37 AD3d 793, 794 [2007]). As there was no showing of prejudice to the defendant, we do not disturb the court's discretionary determination (see Citibank v Nagrotsky, 239 AD2d 456, 457 [1997]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 20, 2016