Tri-State Environmental Contracting, Inc. v M.H. Kane Construction, Inc.

Tri-State Envtl. Contr., Inc. v M.H. Kane Constr., Inc. 2006 NY Slip Op 00240 [25 AD3d 436] January 17, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 22, 2006

Tri-State Environmental Contracting, Inc., Respondent,
v
M.H. Kane Construction, Inc., Appellant.

—[*1]

Order, Supreme Court, New York County (Marian Lewis, Special Ref.), entered November 19, 2004, which directed the entry of judgment for plaintiff and against defendant in the amount of $330,255.38 with interest from January 1, 2000, and costs and disbursements, and judgment, same court, entered December 3, 2004, which awarded plaintiff recovery from defendant in the total amount of $477,736.58, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, defendant's motion for vacatur granted, the judgment vacated, and the matter remanded for further proceedings.

The motion court improvidently exercised its discretion by denying defendant's well-grounded motion to vacate its default pursuant to CPLR 5015 (a) (1) (see Goldman v Cotter, 10 AD3d 289 [2004]). Defendant demonstrated a reasonable excuse for the default, entered by the court sua sponte on the one occasion that defendant failed to appear, with candid, detailed and uncontroverted allegations of law office failure. The four-month delay in seeking vacatur was well within the statutory time limit and was not unreasonable, given defendant's demonstrated intention to pursue the litigation, which had reached the stage of jury selection, and the absence of willful delay or a pattern of neglect either pre or postdefault. The prejudice alleged by plaintiff was mere conclusory conjecture, since no supporting evidence was submitted on this issue and the witness in question was apparently available (see Werner v Tiffany & Co., 291 AD2d 305 [2002]). Defendant also made the requisite prima facie showing of a meritorious defense to plaintiff's account stated claim, by specifying instances where plaintiff's performance of work was allegedly unauthorized or poorly performed resulting in defendant suffering damages (see Tat Sang Kwong v Budge-Wood Laundry Serv., 97 AD2d 691 [1983]). Concur—Mazzarelli, J.P., Marlow, Williams, Sweeny and Catterson, JJ.