Brady v. Paris Maintenance Co.

Appellate Division of the Supreme Court of New York

Brady v. Paris Maintenance Co.

281 A.D.2d 162, 721 N.Y.S.2d 512, 2001 N.Y. App. Div. LEXIS 1919

Appellate Division of the Supreme Court of the State of New York·Decided March 1, 2001·Published·Cited by 2 cases

Opinion

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about December 7, 1999, which denied plaintiff’s motion to vacate the court’s October 13, 1998 order granting, on default, defendant’s motion to dismiss plaintiff’s complaint, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the complaint reinstated on the condition that plaintiff provide all the remaining discovery within 45 days of this order.

Although plaintiff failed to explain her long delay in seeking to vacate her default, the substance of the parties’ depositions, along with the contents of the verified complaint, establish that plaintiff has a meritorious cause of action. Nor is there any challenge to counsel’s explanation for his default on the dismissal motion. Particularly in recognition of plaintiff’s cooperation with the discovery process in all other respects, and in the absence of any apparent prejudice to defendant, we conclude that plaintiff should be afforded an opportunity to proceed with this action, subject to the foregoing condition. Concur—Tom, J. P., Andrias, Ellerin, Rubin and Saxe, JJ.

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Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about December 7, 1999, which denied plaintiff’s motion to vacate the court’s October 13, 1998 order granting, on default, defendant’s motion to dismiss plaintiff’s complaint, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the complaint reinstated on the condition that plaintiff provide all the remaining discovery within 45 days of this order.

Although plaintiff failed to explain her long delay in seeking to vacate her default, the substance of the parties’ depositions, along with the contents of the verified complaint, establish that plaintiff has a meritorious cause of action. Nor is there any challenge to counsel’s explanation for his default on the dismissal motion. Particularly in recognition of plaintiff’s cooperation with the discovery process in all other respects, and in the absence of any apparent prejudice to defendant, we conclude that plaintiff should be afforded an opportunity to proceed with this action, subject to the foregoing condition. Concur—Tom, J. P., Andrias, Ellerin, Rubin and Saxe, JJ.

Brady v. Paris Maintenance Co., 281 A.D.2d 162, 721 N.Y.S.2d 512, 2001 N.Y. App. Div. LEXIS 1919 (N.Y. Ct. App. 2001).

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Opinion

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