Mayville v. Wal-Mart Stores, Inc.

273 A.D.2d 944, 709 N.Y.S.2d 328, 2000 N.Y. App. Div. LEXIS 6971

Opinion

Order unanimously reversed on the law without costs, motion granted and judgment vacated. Memorandum: Supreme Court erred in denying the motion of defendant to vacate a $175,000 default judgment entered against it in plaintiff’s action to recover for personal injuries sustained as a result of a criminal act in defendant’s store. Defendant demonstrated a reasonable excuse for its default in appearing in the action and a meritorious defense to the complaint (see, Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141; Yacone v Ryan Homes, 216 AD2d 963; Bernardo v USAir Group, 175 AD2d 642; Price v Polisner, 172 AD2d 422, 422-423). Given the brief overall delay, the promptness with which defendant moved to vacate the judgment, the lack of any intention on defendant’s part to abandon the action, plaintiffs failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits, we conclude that defendant’s default in appearing must be excused (see, Cerrone v Fasulo, 245 AD2d 793, 794; Dwyer v West Bradford Corp., 188 AD2d 813, 815; Zablocki v Straley, 173 AD2d 1015, 1016). (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Vacate Judgment.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.