Grullon v Gomez

[*1] Grullon v Gomez 2005 NY Slip Op 51594(U) [9 Misc 3d 131(A)] Decided on September 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
2005-210 Q C

Jose Grullon, Appellant,

against

Dionicio Gomez and Daniel Morrobel, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 1, 2004. The order, insofar as appealed from, as limited by plaintiff's brief, denied plaintiff's motion to reinstate a default judgment against defendants.

Order, insofar as appealed from, unanimously affirmed without costs.

In this action for personal injuries stemming from an automobile accident, the court below properly exercised its discretion in denying plaintiff's second motion to reinstate a default judgment. While defendants twice failed to strictly comply with requirements regarding service and filing of their answer contained in orders of the court below respectively vacating the default judgment and denying a prior motion to reinstate it, both of these failures were technical and de minimis in nature. Nor was any evidence, outside of the technical failures themselves, brought forward to show that defendants have engaged in a pattern of neglect that was willful and/or contumacious in nature (see e.g. Clarke v United Parcel Serv., 300 AD2d 614 [2002]) that would support reinstatement of the default judgment. Public policy favors resolution of matters upon their merits (see Marmo v Gebbia, 294 AD2d 411 [2002]; Faustin v In Choon Choi, 2002 NY Slip Op 40205[U] [App Term, 2d & 11th Jud Dists]). As the court below pointed out, in all likelihood a minimal extension of professional courtesy would have prevented the past two years' delay of such resolution herein (see Sumner v Reich, 92 AD2d 590 [1983]).
Decision Date: September 30, 2005