Levy v. Aquasciences International, Inc.

179 A.D.2d 566

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1992
• Status: Published

Opinion

On January 16, 1991, the trial court granted plaintiffs’ motion for a default judgment against all the named defendants for their failure to appear on calendar call. The court’s March 6, 1991 order granting default judgment and directing an assessment of damages was addressed to the defendants "other than Michael Gales”. On April 17, 1991, the court denied plaintiffs’ motion to correct the March 6, 1991 order, citing the court’s discretion under CPLR 2001 to disregard defendant Gales’s mistake or omission in failing to appear personally to contest the original motion for default judgment. The court noted that it was "apparent that M. Gales did not intentionally default, and that any failure on his part if in fact there was such a failure is due to confusion occasioned by the multiplicity of actions involving these parties.” By order entered on or about May 22, 1991, the court, upon reargument, adhered to its earlier decision "vacating” the default of defendant Gales.

Although the trial court referred to its actions as "vacating” the default judgment, which brings to mind a motion to vacate a judgment under CPLR 5015, the court was clearly exercising its discretion to disregard a mistake or omission under CPLR 2001. Based on defendant’s submission in January 1991 of an affidavit in opposition to the motion for default judgment, oral argument and another personal appearance by Gales, the IAS court was able to conclude that he had no intention of defaulting in this action. Since no substantial right of plaintiffs was prejudiced, we find no abuse of discretion by the court disregarding as a mistake or omission the defendant’s failure to appear personally on the return date of the motion (see, CPLR 2001; Pinto v House, 79 AD2d 361, 365). Concur — Rosenberger, J. P., Wallach, Kupferman, Asch and Rubin, JJ.