Dalton v Durland

[*1] Dalton v Durland 2007 NY Slip Op 51288(U) [16 Misc 3d 129(A)] Decided on June 25, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LaCAVA and EMERSON, JJ
2006-1513 W C.

David Dalton, Respondent,

against

Rachel Durland, MARIS DURLAND, Appellants.

Appeal from orders of the City Court of White Plains, Westchester County (Brian Hansbury, J.), entered January 4, 2006 and June 23, 2006. The order entered January 4, 2006 denied defendants' motion to vacate a default judgment. The order entered June 23, 2006 denied defendants' motion, in effect, to reargue.

Order entered January 4, 2006 reversed without costs, motion to vacate default judgment granted and matter remanded to the court below for all further proceedings.

Appeal from order entered June 23, 2006 dismissed.

Under the totality of the circumstances presented, we are of the opinion that the court below improvidently exercised its discretion, in this small claims action, in denying
defendants' motion to vacate the default judgment. We note that actions should be decided on the merits whenever possible (see Simpson v City of New York, 10 AD3d 601 [2004]; Traina v Taglienti, 6 AD3d 524 [2004]). Accordingly, the order of January 4, 2006 is reversed and defendants' motion to vacate the default judgment is granted.

The order of June 23, 2006, in effect, denied defendants' motion for reargument, from which no appeal lies (see Holmes v Hanson, 286 AD2d 750 [2002]; Baciu v City Univ. of N.Y., 283 AD2d 447 [2001]). Accordingly, the appeal from said order is dismissed.

Rudolph, P.J., LaCava and Emerson, JJ., concur.