Opinion
2007-262 S C.
Decided July 8, 2008.
Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated October 3, 2006, and from a judgment of the same court entered October 12, 2006. The order denied defendants' motion to open their default in appearing for trial. The judgment, after an inquest, awarded plaintiff the sum of $12,835 plus interest and costs.
Appeal from order dated October 3, 2006 dismissed.
Judgment reversed without costs, order dated October 3, 2006 vacated and defendants' motion to open their default in appearing for trial granted.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
Plaintiff commenced this action to recover the $14,002.98 balance allegedly due for work, labor, services and materials it provided in connection with professional landscaping services. Defendants failed to appear on an adjourned trial date, and the court held them in default and proceeded to inquest. Defendants promptly moved to open their default, arguing that their attorney was not given notice of the adjourned date for trial, that they did not have a written contract with plaintiff and that they had paid plaintiff for all the services provided. The court denied defendants' motion, and judgment was entered in favor of plaintiff in the principal sum of $12,835. Defendants appeal from both the judgment and the order denying their motion to open their default.
The appeal from the order dated October 3, 2006 is dismissed because the right of direct appeal therefrom terminated with the entry of judgment ( see Matter of Aho, 39 NY2d 241). The issues raised with respect to said order are brought up for review and considered on the appeal from the judgment ( see CPLR 5501 [a] [1]), which is appealable as to the contested issues ( James v Powell, 19 NY2d 249, 256 n 3 [1967]).
A defendant seeking to open a default is required to demonstrate both a reasonable excuse for the default and a meritorious defense ( see Ford Motor Credit Co. v Stim, 13 Misc 3d 144[A], 2006 NY Slip Op 52320[U] [App Term, 9th 10th Jud Dists 2006]). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the [lower court]" ( Levi v Levi , 46 AD3d 519 , 519). Under the circumstances of this case, defendants' attorney established that he relied upon the court's actions in mailing, after each prior adjournment, a notice to the parties of the new trial date, and there was no evidence that such notice was sent to him in this case ( cf. Matter of Aetna Life Cas. Co. v Walker, 255 AD2d 381, 382). Furthermore, "[t]his was an isolated incident of non-appearance and there was no evidence that the default was willful" ( Liotti v Peace , 15 AD3d 452, 453 [internal citations omitted]). As defendants also demonstrated that they have an arguably meritorious defense, the court improvidently exercised its discretion in denying their motion to open their default.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.