Bobet v. Rockefeller Center, North, Inc.

78 A.D.3d 475, 911 N.Y.S.2d 43

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Debra A. James, J.), entered March 23, 2009, which to the extent appealed from, as limited by the briefs, granted plaintiff’s motion to vacate a prior order granting defendants summary judgment dismissing the complaint on default, unanimously affirmed, without costs.

To obtain relief from a default judgment, a party is required to demonstrate both a reasonable excuse for the default and a meritorious claim or defense to the action (see CPLR 5015 [a] [1]; Facsimile Communications Indus., Inc. v NYU Hosp. Ctr., 28 AD3d 391 [2006]).

The court properly found plaintiff’s default excusable, particularly in view of the strong public policy of deciding cases on the merits (see National Union Fire Ins. Co. of Pittsburgh, Pa. v Diamond, 39 AD3d 360, 361 [2007]). There was no indication of a pattern of dilatory behavior or evidence that the default was willful, and there was no claim of prejudice.

Moreover, based on testimony of a recurring pattern of placing wet garbage in the area where plaintiff fell, the court properly determined that plaintiff had a meritorious claim (see Cignarella v Anjoe-A.J. Mkt., Inc., 68 AD3d 560, 561 [2009]). Concur — Gonzalez, P.J., Mazzarelli, Andrias, Nardelli and Richter, JJ.