Notte Restaurant Corp. v. 1626 Second Avenue, LLC

2017 NY Slip Op 951, 147 A.D.3d 468, 46 N.Y.S.3d 599

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2017
• Docket: 600027/09 3048N 603492/09 3047N
• Status: Published

Opinion

Orders, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 5, 2015, which denied the motions of 1626 Second Avenue, LLC (the defendant in the first action and the plaintiff in the second action) to enforce a default against plaintiffs in the first action and defendant Steven Salsberg in the second action, and vacated the defaults, unanimously affirmed, without costs.

The motion court providently exercised its discretion in vacating the defaults (Matter of Rivera v New York City Dept. of Sanitation, 142 AD3d 463, 465 [1st Dept 2016]), given that public policy favors the resolution of cases on the merits (id.), that Salsberg provided a reasonable excuse for the defaults (id. at 464), that it has already been determined that issues of fact exist concerning the lease and guaranty at issue in the two actions (see 1626 Second Ave. LLC v Salsberg, 105 AD3d 432, 432-433 [1st Dept 2013]), and that 1626 failed to follow the court’s directions for entering default judgments.

Concur— Friedman, J.P., Andrias, Moskowitz, Kapnick and Kahn, JJ.