Rodriguez v Rodriguez

Rodriguez v Rodriguez 2009 NY Slip Op 08150 [67 AD3d 499] November 12, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Rafael Rodriguez, Respondent,
v
Jimmy Rodriguez, Appellant.

—[*1] Koenig & Samberg, Mineola (Arnold Koenig of counsel), for appellant.

Rodriguez & Fuentes, P.C., Bronx (Savina P. Playter of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard Silver, J.), entered September 19, 2008, which, to the extent appealable, denied defendant's motion to renew his motion to vacate a default judgment and restore the case to the trial calendar, unanimously reversed, on the facts, without costs, renewal granted and, upon renewal, the motion to vacate the default granted and the matter remanded for trial.

Defendant's attorney's representation that a former employee had been misdirecting or misplacing mail provides a reasonable excuse for his failure to present such evidence of law office failure on defendant's original motion to vacate the default judgment as well as his failure to appear in court on various dates (see Solowij v Otis El. Co., 260 AD2d 226 [1999]). Defendant's affidavit shows a meritorious defense. Concur—Gonzalez, P.J., Andrias, Saxe, Renwick and Manzanet-Daniels, JJ.