Britton v Gordon

[*1] Britton v Gordon 2009 NY Slip Op 52407(U) [25 Misc 3d 140(A)] Decided on December 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570567/09.

Dave Britton, Plaintiff-Appellant,

against

Rupert Gordon, Defendant-Respondent.

Plaintiff appeals from 1) an order of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), dated August 27, 2008, which denied his motion to dismiss defendant's counterclaim, and 2) an order of the same court (Raul Cruz, J.), dated June 1, 2009, which denied his motion to vacate a default judgment.

Per Curiam.

Order (Raul Cruz, J.), dated June 1, 2009, reversed, without costs, motion granted, default judgment vacated, and matter remanded for further proceedings. Order (Donald A. Miles, J.), dated August 27, 2008, affirmed, without costs.

Given the policy favoring disposition of cases on the merits, the default judgment issued against plaintiff in this small claims action should have been vacated upon his showing of a potentially meritorious cause of action and a possible meritorious defense to defendant's vaguely stated counterclaim, plaintiff's lack of willfulness, and the absence of prejudice to defendant. We note that the June 1, 2009 short-form order issued below reflects the court's failure to exercise its discretion in considering plaintiff's vacatur motion because of the court's apparent misapprehension as to its authority to do so.

We sustain the August 27, 2008 order denying plaintiff's motion to dismiss the counterclaim, since the thin record so far developed does not conclusively establish that the consent final judgment issued in the prior eviction proceeding between the parties is determinative of the rent and ancillary issues raised herein.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 01, 2009