Opinion
570570/04, 4-M04-374.
Decided November 21, 2005.
Defendant appeals from an order of the Civil Court, New York County (Geoffrey D. Wright, J.), entered September 27, 2004, which denied his motion to vacate a default judgment entered against him.
Order (Geoffrey D. Wright, J.), entered December 30, 2004, reversed, with $10 costs, motion granted and default judgment vacated.
PRESENT: Suarez, P.J., Gangel-Jacob, Schoenfeld, JJ.
In light of the strong public policy to dispose of cases on their merits, we find that the motion court improvidently exercised its discretion in denying defendant's motion to vacate the default judgment entered against him where defendant demonstrated a reasonable excuse for his default and a meritorious defense ( see Eugene Di Lorenzo, Inc. v. AC Dutton Lumber, 67 NY2d 138, 141).
In support of his motion to vacate his default, defendant asserted that after he filed a verified answer, neither he nor his attorney received notice of any impending trial date. While plaintiff's counsel claimed that the matter was set for trial on December 9, 1998 and that he notified defense counsel of the trial date by facsimile, he submitted only a copy of the letter without proof of transmission. Moreover, while plaintiff's counsel attested that the trial date was adjourned on consent, the court docket does not show any appearance by defense counsel or an adjournment on consent.
Defendant made a prima facie showing of a meritorious defense by way of a personal affidavit setting forth facts contesting plaintiff's cause of action. Defendant denied any dealings with plaintiff and, moreover, asserted that plaintiff is not entitled to recover from him any indebtedness incurred by his partnership, 4 M Development Company, where plaintiff dispensed with joining the partnership as a defendant and did not plead that the claim against the partnership would be futile because of its insolvency or inability to pay ( see United States Trust Co. v. Bamco 18, 183 AD2d 549, 550-51).
This constitutes the decision and order of the court.