Rodriguez v Gautreaux

[*1] Rodriguez v Gautreaux 2012 NY Slip Op 50247(U) Decided on February 9, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., WESTON and GOLIA, JJ
2010-2912 RI C. -x

Jose Rodriguez, Appellant,

against

Marina Gautreaux, Respondent. -x

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered September 15, 2010. The order denied plaintiff's motion to, in effect, vacate an order entered August 11, 2010, which had denied, for failure to appear, plaintiff's prior motion to, among other things, vacate the dismissal of the complaint, and, upon vacatur of the order entered August 11, 2010, to vacate the dismissal of the complaint, restore the case to the trial calendar, and compel the Department of Corrections to produce plaintiff for trial or, in the alternative, to assign him counsel.

ORDERED that the order is reversed, without costs, plaintiff's motion to, in effect, vacate the August 11, 2010 order denying plaintiff's prior motion to, among other things, vacate the dismissal of the complaint and, upon such vacatur, to vacate the dismissal of the complaint, restore the case to the calendar, and produce plaintiff for trial is granted.

Plaintiff, who has been incarcerated throughout the pendency of this action, commenced this action, sounding in conversion, in the Supreme Court. After the action was transferred to the Civil Court pursuant to CPLR 325 (d), plaintiff moved for summary judgment, and the matter was adjourned to March 9, 2010, on which date neither party appeared and the complaint was [*2]dismissed. Plaintiff subsequently moved for an order "vacating the dismissal of the action . . . and restoring the matter to the calendar," as well as for an order compelling the Department of Corrections to produce him for trial. By order entered August 11, 2010, the Civil Court denied plaintiff's motion, based on the nonappearance of either side. In September 2010, plaintiff moved, in effect, to vacate the order entered August 11, 2010 and, upon such vacatur, to vacate the March 2010 dismissal of the complaint, restore the case to the calendar, and compel the Department of Corrections to produce him for trial or, in the alternative, to assign him counsel. By order entered September 15, 2010, the Civil Court denied plaintiff's motion without prejudice, stating that "Plaintiff may renew his application upon being released from incarceration."

It is well settled that a plaintiff seeking to vacate a default must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). A review of the record indicates that plaintiff demonstrated both a reasonable excuse for the default and the existence of a meritorious cause of action. Indeed, in her answer, defendant admitted that she owed plaintiff $4,700, and, at the oral argument of this appeal, defendant's counsel likewise conceded that defendant owed plaintiff a sum of money and that she had deposited additional monies with an attorney in the Dominican Republic for the benefit of plaintiff. Consequently, plaintiff's motion to, in effect, vacate the August 2010 order and, upon such vacatur, vacate the order dismissing the complaint, restore the action to the trial calendar, and produce him for trial is granted.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: February 09, 2012