Thys v Pellegrini

[*1] Thys v Pellegrini 2010 NY Slip Op 50032(U) [26 Misc 3d 130(A)] Decided on January 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570693/09.

Susan Thys and Daniel Thys, Plaintiffs-Respondents,

against

Pasquale Pellegrini d/b/a Pat Pellegrini Flooring Corp., Defendant-Appellant.

Defendant appeals from an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), dated June 29, 2009, which denied his motion to vacate a default judgment.

Per Curiam.

Order (Anil C. Singh, J.), dated June 29, 2009, reversed, without costs, defendant's motion to vacate the default judgment is granted and the matter remanded for trial.

Defendant established a potentially meritorious defense (and counterclaim) to this small claims action. Moreover, while defendant's excuse for failing to appear in court for the scheduled trial is hardly overwhelming, it is sufficient under the facts of this case to warrant affording him vacatur relief from the default judgment. Accordingly, in the exercise of our discretion, we conclude that defendant's motion to vacate the default judgment should have been granted (see generally Carroll v Nostra Realty Corp., 54 AD3d 623 [2008], lv dismissed 12 NY3d 792 [2009]; Mutual Marine Office, Inc. v Joy, 39 AD3d 417, 419 [2007]).



THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur



Decision Date: January 13, 2010