Reilly v. City of Rome

Appellate Division of the Supreme Court of New York

Reilly v. City of Rome

114 A.D.3d 1255, 980 N.Y.S.2d 859

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 14, 2014

StatusPublished

Cited by2 cases

This text of 114 A.D.3d 1255 (Reilly v. City of Rome) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reilly v. City of Rome, 114 A.D.3d 1255, 980 N.Y.S.2d 859 (N.Y. Ct. App. 2014).

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Opinion

Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, J.), entered June 13, 2012 in a proceeding pursuant to CPLR article 78. The order granted respondents’ motion to vacate a default judgment.

[1256]*1256It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to CPLR article 78, petitioner appeals from an order granting respondents’ motion to vacate a default judgment. We note at the outset that, although no appeal as of right lies from an intermediate order in a CPLR article 78 proceeding (see CPLR 5701 [b] [1]), we treat the notice of appeal as an application for leave to appeal from the order and grant the application (see Matter of Conde v Aiello, 204 AD2d 1029, 1029 [1994]). It is well settled that the decision whether to vacate a default judgment is a matter within Supreme Court’s discretion (see Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832-833 [1987]). Here, given that respondents proffered a reasonable excuse for failing to serve a timely answer to the petition and demonstrated a meritorious defense (see CPLR 5015 [a] [1]; Puchner v Nastke, 91 AD3d 1261, 1261-1262 [2012]), and considering the “strong public policy in favor of resolving cases on the merits” (Moore v Day, 55 AD3d 803, 804 [2008]; see Puchner, 91 AD3d at 1262), we conclude that the court did not abuse its discretion in granting respondents’ motion (see Cavagnaro v Frontier Cent. School Dist., 17 AD3d 1099, 1099 [2005]). We note that, prior to the default, respondents engaged in settlement discussions with petitioner and filed a motion to dismiss the petition, thus evidencing a “good faith intent to defend” the proceeding on the merits (Coven v Trust Co. of N.J., 225 AD2d 576, 576 [1996]), and we further note that petitioner was not prejudiced by the slight delay in answering the petition (see Accetta v Simmons, 108 AD3d 1096, 1097 [2013]). Present — Smith, J.E, Peradotto, Lindley, Valentino and Whalen, JJ.

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Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, J.), entered June 13, 2012 in a proceeding pursuant to CPLR article 78. The order granted respondents’ motion to vacate a default judgment.

[1256]*1256It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to CPLR article 78, petitioner appeals from an order granting respondents’ motion to vacate a default judgment. We note at the outset that, although no appeal as of right lies from an intermediate order in a CPLR article 78 proceeding (see CPLR 5701 [b] [1]), we treat the notice of appeal as an application for leave to appeal from the order and grant the application (see Matter of Conde v Aiello, 204 AD2d 1029, 1029 [1994]). It is well settled that the decision whether to vacate a default judgment is a matter within Supreme Court’s discretion (see Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832-833 [1987]). Here, given that respondents proffered a reasonable excuse for failing to serve a timely answer to the petition and demonstrated a meritorious defense (see CPLR 5015 [a] [1]; Puchner v Nastke, 91 AD3d 1261, 1261-1262 [2012]), and considering the “strong public policy in favor of resolving cases on the merits” (Moore v Day, 55 AD3d 803, 804 [2008]; see Puchner, 91 AD3d at 1262), we conclude that the court did not abuse its discretion in granting respondents’ motion (see Cavagnaro v Frontier Cent. School Dist., 17 AD3d 1099, 1099 [2005]). We note that, prior to the default, respondents engaged in settlement discussions with petitioner and filed a motion to dismiss the petition, thus evidencing a “good faith intent to defend” the proceeding on the merits (Coven v Trust Co. of N.J., 225 AD2d 576, 576 [1996]), and we further note that petitioner was not prejudiced by the slight delay in answering the petition (see Accetta v Simmons, 108 AD3d 1096, 1097 [2013]). Present — Smith, J.E, Peradotto, Lindley, Valentino and Whalen, JJ.

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114 A.D.3d 1255, 980 N.Y.S.2d 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reilly-v-city-of-rome-nyappdiv-2014.

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