Pisano v. Tupper

177 A.D.2d 886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1991
• Status: Published

Opinion

Mikoll, J.

Appeal from an order of the County Court of Saratoga County (Williams, J.), entered October 10, 1990, which, inter alia, granted certain defendants’ cross motion to vacate a default judgment entered against defendant Frederick A. Tupper Jr.

Defendants Frederick A. Tupper, Jr. and Frederick A. Tupper, Sr. (hereinafter collectively referred to as defendants) moved for relief from a default judgment entered against them on the grounds of excusable default due to law office failure and the existence of a meritorious defense. County Court reopened the default finding that the prolonged illness of defendants’ attorney, the brevity of the delay, the absence of prejudice to plaintiff and a meritorious defense justified such relief. Plaintiff now appeals.

A motion to be relieved from a default is addressed to the discretion of the trial court and the decision of the court to open a default will not be disturbed in the absence of an improvident exercise of discretion (CPLR 5015 [a] [1]; Michael William Printery, Inc. v Qual Krom, 124 AD2d 277, 278). We find no abuse of discretion herein. The law favors a resolution of disputes on the merits rather than by default. The motion to vacate the default was appropriately granted by County Court.

Weiss, J. P., Yesawich Jr., Mercure and Crew III, JJ., concur. Ordered that the order is affirmed, with costs.