Berardo v. Guillet

86 A.D.3d 459, 926 N.Y.2d 521

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 14, 2011
• Status: Published

Opinions

Given “the strong public policy of this State to dispose of cases on their merits, the motion court improvidently exercised its discretion in denying defendants’ motion to vacate the default order” (Chelli v Kelly Group, P.C., 63 AD3d 632, 633 [2009] [citation omitted]), made upon a showing of excusable default and a meritorious defense (Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413 [2011]). Defendants demonstrated that their failure to oppose summary judgment was not willful (see DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581 [2011]), and that they had no knowledge of the summary judgment motion or that their attorney, Mr. Deutsch, was so ill that he was unable to defend the motion.

Regarding reasonable excuse, Ms. Turchin, the counsel who represented defendants on their motion to vacate, and who had obtained stipulations to adjourn the summary judgment motion while acting of counsel for that limited purpose, affirmed to the motion court that Mr. Deutsch had requested that she obtain the adjournments because he was seriously ill. She was surprised to learn that the motion had been granted on default because he told her he had obtained an additional adjournment. According to Ms. Turchin, a few months after the summary judgment motion was granted on default, the 86-year-old counsel of record died from heart disease and kidney failure. While plaintiffs’ counsel denied that an additional adjournment was granted, plaintiffs did not contest the seriousness of Mr. Deutsch’s medical condition at the time the motion was filed.

In denying the motion to vacate the default judgment, the motion court merely focused on plaintiffs’ denial that there was a consent adjournment, and evidently did not consider that the default was inadvertent, apparently caused by the ultimately fatal illness of counsel of record which negatively impacted his ability to defend the summary judgment motion and/or caused his law office failure, leading to the granting of plaintiffs’ motion by default in an action that had been vigorously litigated.

Defendants have shown the “existence of a possibly meritorious defense” (Tat Sang Kwong v Budge-Wood Laundry Serv., 97 AD2d 691, 692 [1983]; compare JP Morgan Chase Bank, N.A. v Bruno, 57 AD3d 362 [2008]) in this action which seeks to pierce the corporate veil, by submission of their verified answers that deny the allegations pertinent to such a claim, and by their affidavits in support of the motion to vacate the judgment entered by default. Concur — Friedman, Catterson, Renwick and Abdus-Salaam, JJ.