Mergent Servs. v Queens Tribune Publs.

[*1] Mergent Servs. v Queens Tribune Publs. 2013 NY Slip Op 50300(U) Decided on March 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570981/12.

Mergent Services c/o John Bal, Plaintiff-Respondent, - -

against

Queens Tribune Publications, Defendant-Appellant.

Defendant appeals from (1) a judgment of the Civil Court of the City of New York, New York County (Peter A. Moulton, J.), entered March 12, 2012, after inquest, in favor of plaintiff and awarding it damages in the principal sum of $4,494; (2) an order (same court and Judge), dated May 10, 2012, which denied defendant's motion to vacate the default judgment; and (3) an order (same court and Judge), dated August 22, 2012, which denied its motion, in effect, for leave to renew the aforesaid order.

Per Curiam.

Order (Peter A. Moulton, J.), dated August 22, 2012, reversed, with $10 costs, motion granted, default judgment vacated, and matter remanded for further proceedings. Appeal from order (same court and Judge), dated May 10, 2012, dismissed, without costs, as academic. Appeal from default judgment (same court and Judge), entered March 12, 2012, dismissed, without costs, as taken from a nonappealable paper (see CPLR 5511).

Although renewal motions generally should be based on newly discovered facts that could not be offered on the prior motion (see CPLR 2221[e]), courts have discretion to relax this requirement and grant such a motion in the interest of justice (see Menjia v Nanni, 307 AD2d 870, 871 [2003]). In the circumstances here present, and to achieve substantial fairness (Tishman Constr. Corp. of NY v City of New York, 280 AD2d 374, 376-377 [2001]), we favorably exercise our discretion and grant defendant's renewed motion to vacate the default judgment. The record shows that defendant provided a reasonable excuse for its failure to appear on the scheduled trial date of this actively litigated matter, as defense counsel had been stricken with a serious illness (see Imperato v Mount Sinai Med. Ctr., 82 AD3d 414 [2011], affd 18 NY3d 871 [2012]; Eaderesto v 22 Leroy Owners Corp., 101 AD3d 450 [2012]), and substitute trial counsel was actually engaged in another court (see Fromartz v Bodner, 266 AD2d 122 [1999]; Abate v Long, 262 AD2d 252 [1999]). Further, upon renewal, defendant submitted a valid affidavit of merits of its president sufficient to vindicate its unintended default, a default not shown to have caused plaintiff any discernable prejudice (see Consortium Consulting Group v Tsai, 2 AD3d 177 [2003]).

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