Auerbach v. Tregerman

106 A.D.3d 633, 965 N.Y.S.2d 716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Anil C. Singh, J.), entered January 10, 2013, which, to the extent appealed from as limited by the briefs, granted defendant’s motion to vacate an order entered upon his default, unanimously affirmed, without costs.

The court properly exercised its discretion in granting the motion, given the lack of evidence that the default was willful or part of a pattern of dilatory conduct and the strong public policy in favor of disposing of cases on their merits (see DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [1st Dept 2011]). Additionally, the default was purportedly caused by innocent law office failure (see Goodwin v New York City Hous. Auth., 78 AD3d 550, 551 [1st Dept 2010]), and defendant has demonstrated at least a colorable defense, as the appeal pending from a prior action will likely also be dispositive on the merits of plaintiff’s motion for summary judgment in this action. Concur—Mazzarelli, J.P., Andrias, DeGrasse, Freedman and Manzanet-Daniels, JJ.