Broadway Trio, LLC v Nima & Asal, Inc.

[*1] Broadway Trio, LLC v Nima & Asal, Inc. 2013 NY Slip Op 50143(U) Decided on February 1, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570686/12.

Broadway Trio, LLC, Petitioner-Landlord,

against

Nima & Asal, Inc., Respondent-Tenant-Appellant, -and- "John and Jane Doe," Respondents-Undertenants.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 13, 2011, which denied its motion to vacate an order which, on default, awarded nonparty Newman & Ferrara LLP, attorneys' fees in the principal sum of $42,708.87.

Per Curiam.

Order (Margaret A. Chan, J.), dated October 13, 2011, reversed, without costs, motion granted, default order vacated, and matter remanded for further proceedings.

Considering the strong policy favoring resolution of cases on the merits (see Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413—414 [2011]), we exercise our discretion to relieve tenant of its default in appearing on the adjourned date of the attorney's fee hearing scheduled in connection with tenant's motion to vacate its former counsel's charging lien. Although tenant's present attorney's recitation of the events leading up to the default may not have been entirely accurate, we are nonetheless satisfied that tenant's isolated nonappearance was neither intentional nor willful, but rather the result of his present attorney's inadvertent miscalendaring of the date of the hearing, which had been adjourned at former counsel's request (see SS Constantine and Helen's Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 745 [2007]). Further, tenant's showing of a potential meritorious defense as to the amount of the legal fee charged was sufficient to vindicate its brief default (see Eisenberg v Bert's Sportsplex Inc., 234 AD2d 740 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 01, 2013