Hyacinth Atkins v Besim Malota

Atkins v Malota 2003 NY Slip Op 18918 [1 AD3d 294] November 25, 2003 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

Hyacinth Atkins, Appellant,
v
Besim Malota, Respondent.

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 18, 2002, which granted defendant's motion to vacate a default judgment granted in July 2002 and denied plaintiff's cross motion to dismiss defendant's motion, and order, same court and Justice, entered July 8, 2003, which, insofar as appealable, denied plaintiff's motion to renew, unanimously affirmed, without costs.

Given the preference for the disposition of cases on the merits, the court exercised its discretion in a provident manner by vacating the default judgment. Defendant established a reasonable excuse for the default (CPLR 5015 [a]) and a meritorious defense to the personal injury action arising out of a motor vehicle accident.

Plaintiff's motion for renewal was based upon evidence that was available at the time of the original motion to vacate the default and, in any event, was irrelevant to the instant matter.

We have considered plaintiff's remaining contentions and find them unavailing. Concur—Nardelli, J.P., Andrias, Rosenberger and Friedman, JJ.