Opinion
2001-09153
Argued April 18, 2002.
May 13, 2002.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Kings County (I. Aronin, J.), dated September 4, 2001, which denied their motion to vacate a judgment of the same court, dated January 29, 2001, upon their default in appearing for trial.
David J. Sutton, PLLC, Garden City, N.Y. (Anne Marie Caradonna of counsel), for appellants.
Vessa Wilensky, P.C., Mineola, N.Y. (Michael P. Vessa and Ruskin, Moscou, Evans Faltischek, P.C. [John A. DeMaro] of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, SANDRA L. TOWNES, JJ.
ORDERED that the order is reversed, as a matter of discretion, without costs or disbursements, the motion is granted, the judgment is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
The Supreme Court improvidently exercised its discretion in denying the defendants' motion. The defendants' failures to appear for trial on two occasions were isolated instances over the course of this more than 10-year-old lawsuit and did not constitute a pattern of neglect. Rather, as confirmed by the affidavit of the defendants' former counsel, these isolated failures were due to the law office failure of that former counsel. Furthermore, the defendants demonstrated the existence of meritorious defenses to this action. We further note that contrary to the plaintiff's contentions, the defendants' pleadings and/or defenses were not previously stricken by an April 16, 2000, order of the Supreme Court restoring this matter to the trial calendar.
Under these circumstances, and in light of the strong public policy favoring resolution of actions on the merits, we choose to exercise our discretion and grant the defendants' motion (see Ferraro v. Balice Fashions, 173 A.D.2d 679; Fernandez v. New York City Health and Hosps. Corp., 238 A.D.2d 544; see also Albin v. First Nationwide Network Mtge. Co., 188 A.D.2d 575; cf. Ruppell v. Hair Plus Beauty, 288 A.D.2d 205; Rock v. Schwartz, 244 A.D.2d 542).
In light of this determination, we need not reach the parties' remaining contentions.
FLORIO, J.P., FRIEDMANN, H. MILLER and TOWNES, JJ., concur.