Opinion
570015/08.
Decided on May 30, 2008.
Plaintiffs appeal 1) from an order of the Civil Court of the City of New York, New York County, dated October 12, 2007 (Arlene P. Bluth, J.), which granted defendant's motion to vacate a default judgment, and 2) from an order of the same court (Debra R. Samuels, J.), dated January 16, 2008, which, inter alia, directed plaintiffs to file a new notice of trial.
PRESENT: McKEON, P.J., DAVIS, SCHOENFELD, JJ.
Orders dated October 12, 2007 (Arlene P. Bluth, J.) and January 16, 2008 (Debra R. Samuels, J.), affirmed, with one bill of $10 costs.
Given the judicial preference for resolving cases on the merits ( see Atkins v Malota, 1 AD3d 294, lv dismissed 3 NY3d 703), the existence of possible meritorious defenses to plaintiff's negligence claim, and the absence of any indication that defendant's defaults at the pretrial conference or the ensuing inquest were willful, the motion court did not abuse its discretion in granting defendant vacatur relief. Nor may plaintiff now seek to enforce the initial May 3, 2006 judgment issued upon defendant's unintended default in answering the complaint, in view of the express provisions of the parties' August 16, 2006 so-ordered stipulation precluding such enforcement, and the extensive litigation course thereafter charted by the parties.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.