MBF Leasing, LLC v Sisco

[*1] MBF Leasing, LLC v Sisco 2009 NY Slip Op 52074(U) [25 Misc 3d 128(A)] Decided on October 14, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 14, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, Shulman, JJ
570057/09.

MBF Leasing, LLC, Plaintiff-Respondent,

against

Jim Sisco a/k/a/ James E. Sisco Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), entered December 23, 2008, which denied his motion to vacate a default judgment and dismiss the complaint.

Per Curiam.

Order (Barbara Jaffe, J.), entered December 23, 2008, modified by vacating the default judgment, and, as so modified, affirmed, without costs. Defendant must serve and file his answer within 20 days of service upon him of a copy of this order with notice of entry (Gass v Gass, 42 AD3d 393 [2007]).

Civil Court correctly denied, without a traverse hearing, that branch of defendant's motion seeking vacatur of the default judgment and dismissal of the complaint for lack of personal jurisdiction under CPLR 5015(a)(4) because defendant failed to sufficiently refute the factual averments contained in plaintiff's process server's affidavit of service. Defendant is nonetheless entitled to vacatur of the default judgment and an opportunity to answer the action on the merits. In light of defendant's potentially meritorious defense to the action (see Pludeman v N. Leasing Sys., 10 NY3d 486 [2008]), the absence of any discernable prejudice to plaintiff (which did not oppose defendant's motion and has not filed a respondent's brief on this appeal), defendant's showing that the default was not willful, and our preference for resolving actions on the merits, we vacate the default judgment under our "inherent discretionary power" to relieve defendant of his default "for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Siegel, NY Practice § 426, 725 [4th ed]).

We need not and do not reach defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: October 14, 2009