Barbuto v Brian Walsh Moving & Stor. Inc.

[*1] Barbuto v Brian Walsh Moving & Stor. Inc. 2005 NYSlipOp 51052(U) Decided on July 6, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-1443 Q C NO. 2004-1443 Q C

Richard J. Barbuto, Appellant,

against

Brian Walsh Moving and Storage Inc., Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (D. Butler, J.), entered June 9, 2004, granting defendant's motion to vacate a default judgment and to restore the matter to the trial calendar.

Order affirmed without costs.

The court below properly exercised its discretion in granting defendant's motion to vacate the default judgment entered against it in this action for property damage when its counsel, who had appeared for trial of the action, apparently left the courtroom to confer regarding the absence of a witness. Defendant demonstrated a reasonable
excuse for the default and a meritorious defense (see Lichtman v Sears, Roebuck & Co., 236 AD2d 373 [1997]), and defendant moved promptly to vacate the default (see Eastern Resource Serv. v Mountbatten Sur. Co., 289 AD2d 283 [2001]). We further note that the order of the court below indicated that plaintiff would be given an opportunity to present evidence regarding the cost of his expert's appearance at the inquest.

Pesce, P.J. and Patterson, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum. [*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
RICHARD J. BARBUTO,

Appellant,

-against-
BRIAN WALSH MOVING AND STORAGE INC.,

Respondent.

Golia, J., concurs in part and dissents in part and votes to modify the order in the following memorandum.

While I concur in the result that the motion to vacate the default judgment and restore the matter to the calendar should be granted, I would condition such relief upon defendant's payment to plaintiff of the sum of $350 within 30 days of the date of the order entered hereon. As plaintiff was put to the expense of producing an expert witness to establish his damages at inquest, payment by defendant of $350 to plaintiff as a prerequisite to restoring the matter to the calendar is appropriate.
Decision Date: July 06, 2005