Guerrera v. Tooker

Appellate Division of the Supreme Court of New York

Guerrera v. Tooker

128 A.D.3d 896, 10 N.Y.S.3d 263

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 20, 2015

Docket2014-02734

StatusPublished

This text of 128 A.D.3d 896 (Guerrera v. Tooker) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Guerrera v. Tooker, 128 A.D.3d 896, 10 N.Y.S.3d 263 (N.Y. Ct. App. 2015).

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Opinion

In an action, inter alia, for the partition of real property, the defendant Marie Tooker appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated November 7, 2013, which granted the plaintiffs motion to vacate an order of the same court dated September 18, 2013, entered upon the plaintiffs default in appearing at pretrial conferences, directing the dismissal of the complaint insofar as asserted against her and awarding her judgment against the plaintiff on the issue of liability on her counterclaims, and to restore the action to the trial calendar.

Ordered that the order dated November 7, 2013, is affirmed, with costs.

To vacate a default in appearing at a pretrial conference, a *897 party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious cause of action or defense (see CPLR 5015 [a] [1]; Selechnik v Law Off. of Howard R. Birnbach, 120 AD3d 1220 [2014]; Dobbins v Vartabedian, 23 AD3d 431 [2005]). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Matter of Tsoukas v Tsoukas, 125 AD3d 872, 876 [2015]). Here, the plaintiff demonstrated a reasonable excuse for his default in appearing on two pretrial conference dates, as well as potentially meritorious causes of action and defenses to the counterclaims asserted by the appellant.

The appellant’s remaining contentions are without merit.

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiffs motion to vacate the order dated September 18, 2013, entered upon the plaintiffs default, directing the dismissal of the complaint insofar as asserted against the appellant and awarding the appellant judgment against the plaintiff on the issue of liability on the appellant’s counterclaims, and to restore the action to the trial calendar. Skelos, J.R, Dickerson, Miller and Hinds-Radix, JJ., concur.

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In an action, inter alia, for the partition of real property, the defendant Marie Tooker appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated November 7, 2013, which granted the plaintiffs motion to vacate an order of the same court dated September 18, 2013, entered upon the plaintiffs default in appearing at pretrial conferences, directing the dismissal of the complaint insofar as asserted against her and awarding her judgment against the plaintiff on the issue of liability on her counterclaims, and to restore the action to the trial calendar.

Ordered that the order dated November 7, 2013, is affirmed, with costs.

To vacate a default in appearing at a pretrial conference, a *897 party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious cause of action or defense (see CPLR 5015 [a] [1]; Selechnik v Law Off. of Howard R. Birnbach, 120 AD3d 1220 [2014]; Dobbins v Vartabedian, 23 AD3d 431 [2005]). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Matter of Tsoukas v Tsoukas, 125 AD3d 872, 876 [2015]). Here, the plaintiff demonstrated a reasonable excuse for his default in appearing on two pretrial conference dates, as well as potentially meritorious causes of action and defenses to the counterclaims asserted by the appellant.

The appellant’s remaining contentions are without merit.

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiffs motion to vacate the order dated September 18, 2013, entered upon the plaintiffs default, directing the dismissal of the complaint insofar as asserted against the appellant and awarding the appellant judgment against the plaintiff on the issue of liability on the appellant’s counterclaims, and to restore the action to the trial calendar. Skelos, J.R, Dickerson, Miller and Hinds-Radix, JJ., concur.

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Bluebook (online)

128 A.D.3d 896, 10 N.Y.S.3d 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guerrera-v-tooker-nyappdiv-2015.

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