DePompo-Seff v. Genovese Drug Stores, Inc.

Appellate Division of the Supreme Court of New York

DePompo-Seff v. Genovese Drug Stores, Inc.

13 A.D.3d 109, 785 N.Y.S.2d 446, 2004 N.Y. App. Div. LEXIS 14818

Appellate Division of the Supreme Court of the State of New York·Decided December 7, 2004·Published·Cited by 3 cases

Opinion

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 9, 2004, which, upon reargument, granted plaintiffs previously denied motion to vacate her default in appearing in response to defendants’ summary judgment motion, and restored the motion to the motion calendar on the condition that plaintiff pay defendants $250, unanimously affirmed, without costs.

Under the circumstances presented, the motion court properly exercised its discretion in conditionally granting plaintiffs motion for vacatur (see Kramer v Edenwald Constr. Co., 261 AD2d 284 [1999]; Levy v Aquasciences Intl., Inc., 179 AD2d 566 [1992]). Plaintiff submitted timely written opposition to defendants’ summary judgment motion demonstrating a meritorious cause of action; her nonappearance at the oral argument of the motion was demonstrably due to law office failure, was not indicative of any intention to delay or abandon the action and did not cause defendants significant prejudice.

We have considered defendants’ remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Williams, Sweeny and Catterson, JJ.

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Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 9, 2004, which, upon reargument, granted plaintiffs previously denied motion to vacate her default in appearing in response to defendants’ summary judgment motion, and restored the motion to the motion calendar on the condition that plaintiff pay defendants $250, unanimously affirmed, without costs.

Under the circumstances presented, the motion court properly exercised its discretion in conditionally granting plaintiffs motion for vacatur (see Kramer v Edenwald Constr. Co., 261 AD2d 284 [1999]; Levy v Aquasciences Intl., Inc., 179 AD2d 566 [1992]). Plaintiff submitted timely written opposition to defendants’ summary judgment motion demonstrating a meritorious cause of action; her nonappearance at the oral argument of the motion was demonstrably due to law office failure, was not indicative of any intention to delay or abandon the action and did not cause defendants significant prejudice.

We have considered defendants’ remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Williams, Sweeny and Catterson, JJ.

DePompo-Seff v. Genovese Drug Stores, Inc., 13 A.D.3d 109, 785 N.Y.S.2d 446, 2004 N.Y. App. Div. LEXIS 14818 (N.Y. Ct. App. 2004).

Pincite

13 A.D.3d 109 (DePompo-Seff v. Genovese Drug Stores, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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