Marcelo v Sapkovski

[*1] Marcelo v Sapkovski 2013 NY Slip Op 50820(U) Decided on May 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570067/13.

Arturo Marcelo, Clemente Montalvo, Eustorgio Marcelo-Vincente, Plaintiffs-Respondents,

against

Jerry Sapkovski d/b/a Advanta Service Center, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered June 27, 2012, which denied his motion which was denominated as one for leave to reargue a prior order denying his motion to vacate a default judgment.

Per Curiam.

Order (Frank P. Nervo, J.), entered June 27, 2012, reversed, with $10 costs, motion granted, default judgment vacated, and matter remanded for further proceedings.

Defendant's motion, though denominated as a motion for leave to reargue, was, in reality, a motion for renewal since it was based on new facts not offered on the prior motion (see CPLR 2221[e][2]). Although renewal motions generally should be based on newly discovered facts that could not be offered on the prior motion (see CPLR 2221[e][3]), 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 (see Tishman Constr. Corp. of NY v City of New York, 280 AD2d 374, 376—377 [2001]), we favorably exercise out discretion and grant defendant's renewed motion to vacate the default judgment. The record shows that defendant's failure to appear on the scheduled calendar date of this actively litigated matter resulted from excusable law office failure. Further, upon renewal, defendant submitted an affidavit of merit of its principal sufficient to vindicate its isolated and unintentional default, a default not shown to have caused plaintiff any discernible prejudice (see Consortium Consulting Group v Tsai, 2 AD3d 177 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 21, 2013