Opinion
CA 02-01194
November 15, 2002.
Appeal from so much of an order of Supreme Court, Niagara County (Fricano, J.), entered October 11, 2001, that granted that part of defendants' motion seeking to vacate the default judgment against defendant Vincent Joseph DiLaura.
KAVINOKY COOK, LLP, BUFFALO (JOAN M. FILDES OF COUNSEL), FOR PLAINTIFF-APPELLANT.
ROSCETTI DE CASTRO, P.C., NIAGARA FALLS (RODNEY A. GIOVE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PINE, J.P., HAYES, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Pursuant to CPLR 3213, plaintiff commenced this action by motion for summary judgment in lieu of complaint, seeking to hold defendants liable on a promissory note executed by defendant Jean M. Zawatski DiLaura and/or a default judgment obtained by plaintiff against her in Massachusetts. Defendants initially failed to answer or otherwise appear in this action, and plaintiff obtained a default judgment against them in the amount of $384,923.33. We conclude that Supreme Court properly granted that part of the motion of defendants seeking to vacate the default judgment entered against defendant Vincent Joseph DiLaura (DiLaura). DiLaura demonstrated a reasonable excuse for his default and a meritorious defense to the action ( see Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141; see also Yacone v. Ryan Homes, 216 A.D.2d 963; Bernardo v. USAir Group, 175 A.D.2d 642; Price v. Polisner, 172 A.D.2d 422, 422-423). "Given the brief overall delay, the promptness with which defendant[s] moved to vacate the judgment, the lack of any intention on [DiLaura's] part to abandon the action, plaintiff's failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits, we conclude that [DiLaura's] brief default in appearing [was properly] excused" ( Mayville v. Wal-Mart Stores, 273 A.D.2d 944, 945; see Cerrone v. Fasulo, 245 A.D.2d 793, 794; Dwyer v. West Bradford Corp., 188 A.D.2d 813, 815; Zablocki v. Straley, 173 A.D.2d 1015, 1016).