Kahn v Century Lbr. Corp.

[*1] Kahn v Century Lbr. Corp. 2006 NY Slip Op 52243(U) [13 Misc 3d 139(A)] Decided on November 8, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-1569 Q C.

Harlan S. Kahn, CPA, Appellant,

against

Century Lumber Corp., Respondent.

Appeal from two orders of the Civil Court of the City of New York, Queens County (Stephen S. Gottlieb, J.), each entered August 1, 2005. The first order granted a motion by defendant to vacate its default. The second order, insofar as appealed from, implicitly denied so much of plaintiff's cross motion as sought sanctions against defendant.

Order granting defendant's motion to vacate its default affirmed without costs.

Order, insofar as appealed from, implicitly denying so much of plaintiff's cross motion as sought sanctions affirmed without costs.

In this action to recover monies allegedly owed for accounting services, defendant was not prepared to proceed to trial on the adjourned trial date, and the
matter was set down for an inquest. Thereafter, defendant moved to vacate its default, and the court below granted the motion.

Since defendant moved to vacate the default promptly, provided a sufficient explanation of the circumstances to constitute a reasonable excuse, and established the existence of a meritorious defense (see CPLR 5015 [a]), the court below did not improvidently exercise its discretion in vacating the default and in ordering the case restored to the trial calendar (see e.g. O'Loughlin v Delisser, 15 AD3d 372 [2005]). Contrary to plaintiff's contention, a motion to vacate an order directing an inquest, made following what amounts to a default, is completely proper. In the circumstances, the court was also within its discretion in implicitly denying that branch of plaintiff's cross motion that sought sanctions against defendant (cf. e.g. Zapell v Mecca, 190 AD2d 791 [1993]). [*2]

Pesce, P.J., Golia and Rios, JJ., concur.

Decision Date: November 08, 2006