Summary
upholding the lower court's finding of a reasonable excuse for defendant's counsel's default in opposing plaintiff's motion for summary judgment, and noting that the lower court "exercised its discretion in a provident manner"
Summary of this case from Elliot Place Props., Inc. v. PerezOpinion
2011-10-14
XIAO JIA LIN, Plaintiff–Appellant, v. Patricia A. ENGLETON, Defendant–Respondent.
Alexander J. Wulwick, New York, for appellant. Leahey, & Johnson, P.C., New York (Peter James Johnson of counsel), for respondent.
Alexander J. Wulwick, New York, for appellant. Leahey, & Johnson, P.C., New York (Peter James Johnson of counsel), for respondent.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 18, 2013, which granted defendant's motion to vacate a prior order granting plaintiff's motion for summary judgment on the issue of liability upon defendant's default, and, upon vacating the prior order, denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.
Supreme Court exercised its discretion in a provident manner in determining that defendant provided a reasonable excuse for her default in opposing plaintiff's motion for summary judgment (CPLR 5015[a][1] ). The record shows that the failure of defendant's counsel to oppose the motion was isolated and unintentional with no evidence of willful neglect ( see Mejia v. Ramos, 113 A.D.3d 429, 979 N.Y.S.2d 281 [1st Dept.2014]; Cruz v. Bronx Lebanon Hosp. Ctr., 73 A.D.3d 597, 905 N.Y.S.2d 135 [1st Dept.2010] ), and there is a strong public policy favoring disposition of cases on the merits ( see Chelli v. Kelly Group, P.C., 63 A.D.3d 632, 883 N.Y.S.2d 26 [1st Dept.2009] ).
Furthermore, there is no dispute that defendant set forth a meritorious defense in this case, involving a traffic accident at a controlled intersection. FRIEDMAN, J.P., MOSKOWITZ, FEINMAN, GISCHE, KAPNICK, JJ., concur.