Opinion
10373 Index 160667/17
11-19-2019
Terezina KALABA, et al., Plaintiffs–Respondents, v. MACY'S, INC., Defendant–Respondent.
Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellant. Doyle & Broumand, LLP, Bronx (Michael B. Doyle of counsel), for respondents.
Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellant.
Doyle & Broumand, LLP, Bronx (Michael B. Doyle of counsel), for respondents.
Friedman, J.P., Renwick, Richter, Mazzarelli, Oing, JJ.
Order, Supreme Court, New York County (James Edward D'Auguste, J.), entered March 13, 2019, which, in this action for personal injuries, granted plaintiffs' motion to vacate their default in opposing defendant's motion to strike the complaint, unanimously affirmed, without costs.
The motion court providently exercised its discretion in granting plaintiffs' motion pursuant to CPLR 5015 to vacate their default in opposing defendant's motion. Plaintiffs demonstrated that they were unaware that their former counsel had failed to respond to defendant's initial discovery demands and to oppose the motion to strike the complaint (see Hamilton v. National Amusements, Inc. , 167 A.D.3d 431, 86 N.Y.S.3d 888 [1st Dept. 2018] ). Furthermore, the injured plaintiff's affidavit set forth a potentially meritorious negligence claim at this stage of the proceedings and, given the absence of any prejudice to defendant, plaintiffs' claims should be resolved on the merits (see Yea Soon Chung v. Mid Queens LP. , 139 A.D.3d 490, 29 N.Y.S.3d 805 [1st Dept. 2016] ).