Deutsche Bank Natl. Trust Co. v Kirschenbaum

Deutsche Bank Natl. Trust Co. v Kirschenbaum 2020 NY Slip Op 00039 Decided on January 2, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 2, 2020
Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.
10680N 850141/14

[*1] Deutsche Bank National Trust Company, etc., Plaintiff-Respondent,

v

Joshua Kirschenbaum, Defendant-Appellant, Winston Capital, LLC, et al., Defendants.

Richland & Falkowski, PLLC, Washingtonville (Daniel H. Richland of counsel), for appellant.

Davidson Fink LLP, Rochester (Richard N. Franco of counsel) for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 3, 2018, which granted plaintiff's motion to vacate an order of dismissal with prejudice entered on default (same court and Justice), unanimously affirmed, without costs.

The motion court's determination to vacate a judgment is a discretionary one (Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220, 226 [2013]; Horan v New York Tel. Co., 309 AD2d 642 [1st Dept 2003]). Plaintiff provided a reasonable excuse for its default (CPLR 5015[1]), in that its having missed a single conference was unintentional and a result of law office failure. Under the circumstances here the court appropriately vacated the default.

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 2, 2020

CLERK