Opinion
16055 Index No. 150674/19 Case No. 2020–04364
05-31-2022
George HAMILTON, Plaintiff–Respondent, v. BASKETBALL CITY NEW YORK LLC et al., Defendants–Appellants.
Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Richard David Lane Jr. of counsel), for appellants. Hach & Rose, LLP, New York (John A. Blyth of counsel), for respondent.
Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Richard David Lane Jr. of counsel), for appellants.
Hach & Rose, LLP, New York (John A. Blyth of counsel), for respondent.
Acosta, P.J., Renwick, Singh, Moulton, Kennedy, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about October 15, 2020, which, in an action for personal injuries arising out of a trip and fall on a raised board or plank, granted plaintiff's motion to vacate an order, same court and Justice, entered on or about February 19, 2020, which dismissed the complaint for plaintiff's failure to appear in court for a scheduled conference on January 14, 2020 and February 18, 2020, unanimously affirmed, without costs. Plaintiff demonstrated that his default was attributable to inadvertent law office failure and was not part of a pattern of delay (see Travelers Ins. Co. v. Abelow, 14 A.D.3d 395, 786 N.Y.S.2d 915 [1st Dept. 2005] ; Harwood v. Chaliha, 291 A.D.2d 234, 737 N.Y.S.2d 359 [1st Dept. 2002] ). At this stage of proceedings, plaintiff's complaint and bill of particulars were sufficient for the motion court to determine that plaintiff had a meritorious cause of action (see Goodwin v. New York City Hous. Auth., 78 A.D.3d 550, 550, 913 N.Y.S.2d 149 [1st Dept. 2010] ; Rugieri v. Bannister, 22 A.D.3d 299, 302, 802 N.Y.S.2d 140 [1st Dept. 2005], affd in relevant part 7 N.Y.3d 742, 819 N.Y.S.2d 861, 853 N.E.2d 231 [2006] ; Nicholos v. Cashelard Rest., Inc., 249 A.D.2d 187, 189, 672 N.Y.S.2d 98 [1st Dept. 1998] ; Arred Enters. Corp. v. Indemnity Ins. Co. of N. Am., 108 A.D.2d 624, 626, 485 N.Y.S.2d 80 [1st Dept. 1985] ). Given the lack of prejudice to defendants and considering the strong public policy of deciding cases on the merits, the court properly exercised its discretion in vacating the default judgment (see Matter of Rivera v. New York City Dept. of Sanitation, 142 A.D.3d 463, 465, 36 N.Y.S.3d 464 [1st Dept. 2016] ; Goodwin, 78 A.D.3d at 551, 913 N.Y.S.2d 149 ).