Palisades Collection, LLC v Estepan

[*1] Palisades Collection, LLC v Estepan 2013 NY Slip Op 50960(U) Decided on June 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Torres, JJ
570836/11.

Palisades Collection, LLC, Plaintiff-

against

Biarka S. Estepan, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (José A. Padilla, Jr., J.), entered February 16, 2012, which denied her motion, denominated as one for leave to renew but treated as one for leave to reargue, her prior motion to vacate a default judgment.

Per Curiam.

Order (José A. Padilla, Jr., J.), entered February 16, 2012, reversed, with $10 costs, motion granted, default judgment vacated, and matter remanded for further proceedings.

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, since defendant offered a "reasonable justification" for failing to submit the new evidence on her original pro se motion and the new evidence "would change the prior determination" (CPLR 2221[e][2],[3]). In this connection, the record on renewal establishes both a reasonable excuse for defendant's default and a potentially meritorious defense to the underlying consumer debt collection action (see Gomez v Delacruz, 27 AD3d 219 [2006]). Thus, 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]), and since plaintiff failed to show that the delay caused it any legal prejudice, we relieve defendant of her unintended default.

Defendant's apparent knowledge of the existence of the judgment was not a bar to vacatur relief in the circumstances of this case, where no showing was made that defendant "explicitly or implicitly participated in the action, thus acknowledging the validity of the judgment, or demonstrated a lack of good faith or delay in asserting [her] rights" (HSBC Bank USA v A & R Trucking Co., Inc., 66 AD3d 606 [2009]). We note, too, that in an appropriate case, the court's inherent discretionary power to vacate a default is not subject to the one-year limitation of CPLR 5015[a][1] (see Siegel, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR [*2]5015:6).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 17, 2013