Heera Indus., Inc. v Barter Brokers Intl., Inc.

Heera Indus., Inc. v Barter Brokers Intl., Inc. 2004 NY Slip Op 07999 [12 AD3d 215] November 9, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Heera Industries, Inc., et al., Respondents,
v
Barter Brokers International, Inc., et al., Appellants, et al., Defendants.

—[*1]

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered March 31, 2003, which granted plaintiffs' motion to vacate their default in opposing a motion by defendants to dismiss the complaint pursuant to a forum selection clause, and, upon vacatur, denied defendants' motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiffs' attorney represents that he failed to serve timely opposition to defendants' motion because he entered the wrong adjourned date in his case management program. It further appears plaintiffs' attorney learned of his error on the day that defendants' motion was granted on default, which was six days after the return date, whereupon he immediately contacted defendants' attorney to request a stipulation vacating the default. The latter took more than two weeks to reject the request, whereupon plaintiffs immediately made the instant motion. Such circumstances show a reasonable excuse for plaintiffs' default (see Barsel v Green, 264 AD2d 649 [1999]). Plaintiffs also show a meritorious cause of action. The complaint seeks to recover not on the contract containing the forum selection clause, but on subsequently issued promissory notes that were issued pursuant to subsequently signed writings. At the least, an issue exists as to whether the promissory notes and subsequent writings were part of the same transaction as the [*2]original, more formal contract containing the forum selection clause. Concur—Sullivan, J.P., Ellerin, Williams, Gonzalez and Catterson, JJ.