Jenkins v New York City Hous. Auth.

[*1] Jenkins v New York City Hous. Auth. 2004 NY Slip Op 50366(U) Decided on April 27, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2003-711 K C

MABEL JENKINS, Respondent,

against

NEW YORK CITY HOUSING AUTHORITY, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (B. Bayne, J.), entered February 20, 2003, which denied its motion to vacate the default judgment.

Order unanimously reversed without costs and defendant's motion to vacate the default judgment granted on condition that defendant's attorney pay $1,000 to plaintiff.

In order to vacate a default judgment, a party must establish both a reasonable excuse for the default as well as a meritorious defense (see Fort Madison Assocs. v Caldararo, 280 AD2d 581 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494
[2000]; Parker v City of New York, 272 AD2d 310 [2000]). CPLR 2005 permits the court to exercise its discretion in the interest of justice to excuse a default resulting from law office failure. We are of the opinion that defendant's counsel established a reasonable excuse for her nonappearance in court due to law office failure (see CPLR 2005; Perez v Astoria Gen. Hosp., 260 AD2d 457 [1999]; Brown v Ryder Truck Rental, 172 AD2d 477 [1991]) and the exhibits attached to defendant's moving papers including a copy of the transcript of the General Municipal Law § 50-h hearing, a copy of plaintiff's examination before trial (EBT) transcript and a copy of the EBT transcript of defense witness James Fine sufficiently demonstrated that defendant has a meritorious defense to the action (see Jones v New York City Tr. Auth., 293 AD2d 322 [2002]). Under the circumstances presented, defendant's motion to vacate the default judgment should have been granted on condition that defendant's attorney pay plaintiff $1,000. [*2]
Decision Date: April 29, 2004