Laracuente v Batia Realty Corp.

Laracuente v Batia Realty Corp. 2008 NY Slip Op 08535 [56 AD3d 294] November 13, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

Celece Laracuente, an Infant, by Her Mother and Natural Guardian, Debbie Velez, et al., Appellants,
v
Batia Realty Corporation et al., Respondents.

—[*1] Manuel D. Gomez & Associates, PC, New York (Manuel D. Gomez of counsel), for appellants.

Cohen & Krassner, New York (Mark Krassner of counsel), for respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered February 26, 2008, granting defendants' motion to vacate a default judgment and for permission to serve an answer, unanimously affirmed, without costs.

A party seeking vacatur of a default judgment pursuant to CPLR 5015 must demonstrate both a reasonable excuse for the default and a meritorious cause of action (Crespo v A.D.A. Mgt., 292 AD2d 5 [2002]). In this matter, defendants attribute their inaction to the dismissal of a prior action filed by plaintiffs in New York County based on the identical facts and theory of liability. Defendants' inaction in the face of the history of litigation between the parties, while ill-advised, was not wholly unreasonable (see Mediavilla v Gurman, 272 AD2d 146 [2000]). We also find that defendants adequately demonstrated a meritorious defense to the action. Accordingly, and in consideration of our preference for deciding cases on the merits (see Wade v Village of Whitehall, 46 AD3d 1302 [2007]; Arias v Sanchez, 227 AD2d 284 [1996]), we conclude that the motion court properly exercised its discretion in granting defendants' motion to vacate the default. Concur—Lippman, P.J., Sweeny, Catterson, Acosta and Renwick, JJ.