Opinion
No. 570067/13.
2013-05-21
Arturo MARCELO, Clemente Montalvo, Eustorgio Marcelo–Vincente, Plaintiffs–Respondents, v. Jerry SAPKOVSKI d/b/a Advanta Service Center, Defendant–Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered June 27, 2012, which denied his motion which was denominated as one for leave to reargue a prior order denying his motion to vacate a default judgment.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Order (Frank P. Nervo, J.), entered June 27, 2012, reversed, with $10 costs, motion granted, default judgment vacated, and matter remanded for further proceedings.
Defendant's motion, though denominated as a motion for leave to reargue, was, in reality, a motion for renewal since it was based on new facts not offered on the prior motion ( seeCPLR 2221[e][2] ). Although renewal motions generally should be based on newly discovered facts that could not be offered on the prior motion ( seeCPLR 2221[e][3] ), courts have discretion to relax this requirement and grant such a motion in the interest of justice ( see Menjia v. Nanni, 307 A.D.2d 870, 871 [2003] ). In the circumstances here present, and to achieve substantial fairness ( see Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 376–377 [2001] ), we favorably exercise out discretion and grant defendant's renewed motion to vacate the default judgment. The record shows that defendant's failure to appear on the scheduled calendar date of this actively litigated matter resulted from excusable law office failure. Further, upon renewal, defendant submitted an affidavit of merit of its principal sufficient to vindicate its isolated and unintentional default, a default not shown to have caused plaintiff any discernible prejudice ( see Consortium Consulting Group v. Tsai, 2 AD3d 177 [2003] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.