Burns v. Casale

276 A.D.2d 734, 715 N.Y.S.2d 158, 2000 N.Y. App. Div. LEXIS 10932

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 2000
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 10, 1999, which granted the plaintiffs’ motion to vacate a prior order of the same court dismissing the complaint upon their failure to appear at a pretrial conference, and restored the action to the calendar.

Ordered that the order is affirmed, with costs.

A court may vacate an order entered on default upon a showing by the movant of a reasonable excuse and a meritorious claim (see, Barbagallo v Nationwise Exterminating & Deodorizing, 260 AD2d 518; Grutman v Southgate at Bar Harbor Home Owners’ Assn., 207 AD2d 526). The plaintiffs’ default in appearing at a pretrial conference was due to reasonable law office failure (see, CPLR 2005; Parker v City of New York, 272 AD2d 310; Belesi v Gifford, 269 AD2d 552). The plaintiffs promptly moved to cure their default, and thus there was virtually no delay or prejudice to the defendants. Additionally, the plaintiffs demonstrated the merit of their claims. Thus, the Supreme Court providently exercised its discretion in granting the motion to vacate the default in appearing at the conference (see, Mena v Choon-Ket Kong, 269 AD2d 575; Fox v Bicanic, 163 AD2d 272; Charmer Indus. v 71 Grand Liq. Corp., 128 AD2d 825). Sullivan, J. P., S. Miller, H. Miller and Smith, JJ., concur.