Andino v. DeJesus

15 A.D.3d 259, 790 N.Y.S.2d 20, 2005 N.Y. App. Div. LEXIS 1546

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 2005
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about March 24, 2004, which, upon reargument, granted plaintiffs’ previously denied motion for a default judgment and denied defendants’ previously granted motion to dismiss the action as time-barred, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of vacating the default judgment, deeming the answer timely served and filed, the statute of limitations defense stricken, and otherwise affirmed, without costs. Order, same court (Yvonne Gonzalez, J.), entered on or about July 1, 2004, which denied the motion of defendants Espinal and Miguel A. Gonzalez to vacate plaintiffs note of issue for failure to provide discovery, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the note of issue vacated.

Under the circumstances presented, which include ministerial failures on the part of both plaintiffs’ counsel and defendants’ counsel, equity dictates that we adhere to the strong policy of our courts to permit an action to proceed to a disposition on its merits. Accordingly, the default judgment is vacated, the answer is deemed timely served, the statute of limitations defense stricken, and the matter remanded for further discovery, including service of a bill of particulars.

We have considered the parties’ remaining arguments and find them unavailing. Concur — Mazzarelli, J.E, Saxe, Friedman, Nardelli and Catterson, JJ.