Opinion
2005-1569 Q C.
Decided on November 8, 2006.
Appeal from two orders of the Civil Court of the City of New York, Queens County (Stephen S. Gottlieb, J.), each entered August 1, 2005. The first order granted a motion by defendant to vacate its default. The second order, insofar as appealed from, implicitly denied so much of plaintiff's cross motion as sought sanctions against defendant.
Order granting defendant's motion to vacate its default affirmed without costs.
Order, insofar as appealed from, implicitly denying so much of plaintiff's cross motion as sought sanctions affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this action to recover monies allegedly owed for accounting services, defendant was not prepared to proceed to trial on the adjourned trial date, and the matter was set down for an inquest. Thereafter, defendant moved to vacate its default, and the court below granted the motion.
Since defendant moved to vacate the default promptly, provided a sufficient explanation of the circumstances to constitute a reasonable excuse, and established the existence of a meritorious defense ( see CPLR 5015 [a]), the court below did not improvidently exercise its discretion in vacating the default and in ordering the case restored to the trial calendar ( see e.g. O'Loughlin v Delisser, 15 AD3d 372). Contrary to plaintiff's contention, a motion to vacate an order directing an inquest, made following what amounts to a default, is completely proper. In the circumstances, the court was also within its discretion in implicitly denying that branch of plaintiff's cross motion that sought sanctions against defendant ( cf. e.g. Zapell v Mecca, 190 AD2d 791).
Pesce, P.J., Golia and Rios, JJ., concur.