Ishmail v ATM Three, LLC

Ishmail v ATM Three, LLC 2006 NY Slip Op 09513 [35 AD3d 270] December 19, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Imtiaz A. Ishmail et al., Appellants,
v
ATM Three, LLC, et al., Respondents, et al., Defendant.

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Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered September 13, 2005, which granted defendants-respondents' motion to vacate their default in answering and to compel plaintiffs to accept their answer, unanimously affirmed, without costs.

This is an action to recover damages for personal injuries and wrongful death arising out of a fire started by defendant Balram Singh at the premises owned and operated by defendants-respondents. Defendant Singh apparently pleaded guilty to arson for setting the fire and, accordingly, it is clear that defendants-respondents have a meritorious defense. In addition, the record supports defendants-respondents' contention that plaintiffs' counsel agreed to extend their time to answer, and demonstrates that the answer, although rejected by plaintiffs, was in fact served within the agreed-upon 30-day extension. Inasmuch as a meritorious defense and a reasonable excuse for the default have been shown, the motion to vacate the default and compel plaintiffs to accept defendants-respondents' answer was properly granted (see Barajas v Toll Bros., 247 AD2d 242, 243 [1998]). Concur—Buckley, P.J., Tom, Mazzarelli, Friedman and McGuire, JJ.