Angelina DePompo-Seff v Genovese Drug Stores, Inc.

DePompo-Seff v Genovese Drug Stores, Inc. 2004 NY Slip Op 09022 [13 AD3d 109] December 7, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Angelina DePompo-Seff, Respondent,
v
Genovese Drug Stores, Inc., et al., Appellants.

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Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 9, 2004, which, upon reargument, granted plaintiff's previously denied motion to vacate her default in appearing in response to defendants' summary judgment motion, and restored the motion to the motion calendar on the condition that plaintiff pay defendants $250, unanimously affirmed, without costs.

Under the circumstances presented, the motion court properly exercised its discretion in conditionally granting plaintiff's motion for vacatur (see Kramer v Edenwald Constr. Co., 261 AD2d 284 [1999]; Levy v Aquasciences Intl., Inc., 179 AD2d 566 [1992]). Plaintiff submitted timely written opposition to defendants' summary judgment motion demonstrating a meritorious cause of action; her nonappearance at the oral argument of the motion was demonstrably due to law office failure, was not indicative of any intention to delay or abandon the action and did not cause defendants significant prejudice.

We have considered defendants' remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Williams, Sweeny and Catterson, JJ.