Fuentes v Virgil

Fuentes v Virgil 2011 NY Slip Op 06998 Decided on October 4, 2011 Appellate Division, Second 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 October 4, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
ANITA R. FLORIO
JOHN M. LEVENTHAL
ARIEL E. BELEN
JEFFREY A. COHEN, JJ.
2009-10506
(Index No. 17406/99)

[*1]Sergio Fuentes, appellant, et al., plaintiffs,

v

Alonzo Virgil, defendant, Rosa Martinez, respondent.



 
Law Office of Yana Rubin, LLC, New York, N.Y., for appellant.
Goldberg Segalla, LLP, Mineola, N.Y. (Christopher M. Hart of
counsel), for respondent.

 
DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiff Sergio Fuentes appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated July 9, 2009, as (a) granted that branch of the motion of the defendant Rosa Martinez which was, in effect, pursuant to CPLR 5015, to vacate so much of a judgment of the same court entered January 13, 2009, as, upon an order of the same court dated January 31, 2003, granting his unopposed renewed motion for leave to enter judgment against that defendant on the issue of liability upon her default in appearing or answering, and after an inquest, was in favor of him and against that defendant in the principal sum of $1,613,880.18, and (b) granted the defendant Rosa Martinez leave to file and serve an answer.

ORDERED that the order dated July 9, 2009, is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the motion of the defendant Rosa Martinez which was, in effect, pursuant to CPLR 5015, to vacate so much of a judgment entered January 13, 2009, as was in favor of the plaintiff Sergio Fuentes and against her in the principal sum of $1,613,880.18, and in granting Martinez leave to file and serve an answer. Martinez provided a reasonable excuse for her default and demonstrated the existence of a potentially meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. [*2]v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Hodges v Sidial, 48 AD3d 633; Ray Realty Fulton, Inc. v Lee, 7 AD3d 772). Moreover, vacatur of the default is consistent with the strong public policy of resolving cases on their merits (see Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150; O'Loughlin v Delisser, 15 AD3d 372).
MASTRO, J.P., FLORIO, LEVENTHAL, BELEN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court