Misra & Associates, P. C. v. 1155 Dekalb Ave. Corp.

273 A.D.2d 450, 711 N.Y.S.2d 734, 2000 N.Y. App. Div. LEXIS 7369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2000
• Status: Published

Opinion

In an action, inter alia, to foreclose a mechanic’s lien, the defendant 1155 DHS, L. L. C., appeals from stated portions of an order of the Supreme Court, Bangs County (Steinhardt, J.), dated March 22, 1999, as amended July 9, 1999, which, among other things, granted the plaintiff’s motion to vacate an order of the same court dated January 5, 1999, granting its prior cross motion to vacate the plaintiff’s mechanic’s lien and its bond, upon the plaintiffs default in opposing the cross motion.

Ordered that the order, as amended, is affirmed, without costs or disbursements.

The decision to vacate a default pursuant to CPLR 5015 (a) is left to the sound discretion of the Supreme Court and will generally be upheld in the absence of an improvident exercise of that discretion (see, Epps v LaSalle Bus, 271 AD2d 400; Matter of Ping Lee v City of New York, 233 AD2d 510; P & K Marble v Pearce, 168 AD2d 439). In this case, the Supreme Court providently exercised its discretion in granting the plaintiff’s motion since the plaintiff demonstrated a valid excuse for its default and a meritorious cause of action (see, CPLR 5015 [a]; Medric Constr. v J.W. Mays, Inc., 230 AD2d 832; cf., North Fork Bank v Martin, 257 AD2d 613; Roussodimou v Zafiriadis, 238 AD2d 568; Chery v Anthony, 156 AD2d 414).

The appellant’s remaining contentions are without merit. Joy, J. P., Friedmann, Krausman and H. Miller, JJ., concur.