OPM Group Ltd. v Alejandro Williams

OPM Group Ltd. v Williams 2006 NY Slip Op 03636 [29 AD3d 354] May 9, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

OPM Group Ltd., Appellant,
v
Alejandro Williams, D.D.S., Respondent.

—[*1]

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered April 22, 2005, which, insofar as appealed from, granted defendant's motion to vacate a default judgment, unanimously affirmed, without costs.

Defendant's attorney represents that a week or two prior to the January 28, 2005 return date of plaintiff's motion for a default judgment, he and plaintiff's attorney orally agreed over the phone to adjourn the return date until March 2, 2005. Plaintiff's attorney admits the phone conversation but represents that the oral agreement was for an extension of defendant's time to answer until February 2, 2005. The motion court granted the motion for a default judgment on default on February 2; the default judgment was entered on February 4 and served with notice of entry on February 10; defendant filed his answer on March 1, and, after its rejection by plaintiff, made the instant motion to vacate on March 9. Under the circumstances, and in the absence of any argument by plaintiff that defendant lacks a meritorious defense or that the delay caused it prejudice, vacatur of the default was a proper exercise of discretion (cf. Travelers Ins. Co. v Abelow, 14 AD3d 395 [2005] [miscalendaring court conference excusable law office failure]; Andino v DeJesus, 15 AD3d 259 [2005] [strong policy preference for disposing of cases on the merits]). Concur—Andrias, J.P., Sullivan, Williams, Sweeny and McGuire, JJ.