Biffer v. Alt Floor & Wall Covering, LLC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 21, 2019
• Docket: 2019 NYSlipOp 51878(U)
• Status: Published

Opinion

Stanley Biffer, Doing Business as Products Unlimited, Respondent,

against

Alt Floor & Wall Covering, LLC, Appellant.

Alt Floor & Wall Covering, LLC, appellant pro se. Stanley Biffer Doing Business as Products Unlimited, respondent pro se (no brief filed).

Appeal from an order of the District Court of Suffolk County, Second District (John P. Schettino, J.), entered May 7, 2018. The order denied defendant's motion to vacate a judgment of that court entered November 15, 2017 upon defendant's failure to appear at a scheduled hearing.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is granted.

In this small claims action, defendant appeals from an order of the District Court entered May 7, 2018 which denied its motion to vacate a judgment of that court entered on November 15, 2017 upon defendant's failure to appear at a scheduled hearing. The judgment awarded plaintiff the total sum of $3,963.67. Upon a review of the record, we find that the District Court improvidently exercised its discretion in denying defendant's motion, since defendant established an excusable default and a possible meritorious defense to the action (see CPLR 5015 [a] [1]; Abrash v Lavendar, 119 AD2d 785 [1986]).

Accordingly, the order is reversed and defendant's motion to vacate the default judgment is granted.

ADAMS, P.J., RUDERMAN and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 21, 2019