Whitney Lane Holdings, LLC v. Don Realty, LLC

Appellate Division of the Supreme Court of New York

Whitney Lane Holdings, LLC v. Don Realty, LLC

127 A.D.3d 1463, 7 N.Y.S.3d 679, 2015 NY Slip Op 03226, 2015 N.Y. App. Div. LEXIS 3174

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

DecidedApril 16, 2015

Docket519622

StatusPublished

This text of 127 A.D.3d 1463 (Whitney Lane Holdings, LLC v. Don Realty, LLC) 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.

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Whitney Lane Holdings, LLC v. Don Realty, LLC, 127 A.D.3d 1463, 7 N.Y.S.3d 679, 2015 NY Slip Op 03226, 2015 N.Y. App. Div. LEXIS 3174 (N.Y. Ct. App. 2015).

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Opinion

Lahtinen, J.P.

Appeal from an order of the Supreme Court (Ferradino, J.), entered May 16, 2014 in Saratoga County, which granted defendants’ motion to vacate a prior order of the court.

This action involves a dispute about a commercial real estate transaction. Alleging noncompliance with some of its discovery demands, plaintiff moved for a preclusion order and to strike defendants’ answer. Defendants did not submit any papers in opposition and, accordingly, Supreme Court granted the mo *1464 tion. Defendants promptly moved to vacate the order asserting, among other things, that they had not been served with plaintiffs motion papers and that they had already substantially complied with the disputed discovery demands. Supreme Court granted defendants’ motion and plaintiff now appeals.

We affirm. To vacate their default in failing to oppose the motion, defendants were “required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]; see Wood v Tuttle, 106 AD3d 1393, 1394 [2013]). “Supreme Court’s decision on a motion to vacate a default will only be disturbed in the event of an abuse of discretion” (Aaron v Carter, Conhoy, Case, Blackmore, Napierski & Maloney, P.C., 12 AD3d 753, 754-755 [2004] [citation omitted]). Here, Supreme Court credited defendants’ explanation for their failure to respond to plaintiffs preclusion motion, which included a lack of service upon them of the motion and a miscommunication regarding discovery that had already been provided. The court further found potential merit in defendants’ opposition to the motion since defendants had apparently provided plaintiffs former counsel with 10 boxes of records, which defendants asserted encompassed the current demands by plaintiff. Supreme Court did not abuse its discretion in vacating the order, and its decision is also consistent with the preference for resolving cases on the merits (see Gurin v Pogge, 112 AD3d 1028, 1030 [2013]).

Garry, Rose and Devine, JJ., concur.

Ordered that the order is affirmed, with costs.

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Lahtinen, J.P.

Appeal from an order of the Supreme Court (Ferradino, J.), entered May 16, 2014 in Saratoga County, which granted defendants’ motion to vacate a prior order of the court.

This action involves a dispute about a commercial real estate transaction. Alleging noncompliance with some of its discovery demands, plaintiff moved for a preclusion order and to strike defendants’ answer. Defendants did not submit any papers in opposition and, accordingly, Supreme Court granted the mo *1464 tion. Defendants promptly moved to vacate the order asserting, among other things, that they had not been served with plaintiffs motion papers and that they had already substantially complied with the disputed discovery demands. Supreme Court granted defendants’ motion and plaintiff now appeals.

We affirm. To vacate their default in failing to oppose the motion, defendants were “required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]; see Wood v Tuttle, 106 AD3d 1393, 1394 [2013]). “Supreme Court’s decision on a motion to vacate a default will only be disturbed in the event of an abuse of discretion” (Aaron v Carter, Conhoy, Case, Blackmore, Napierski & Maloney, P.C., 12 AD3d 753, 754-755 [2004] [citation omitted]). Here, Supreme Court credited defendants’ explanation for their failure to respond to plaintiffs preclusion motion, which included a lack of service upon them of the motion and a miscommunication regarding discovery that had already been provided. The court further found potential merit in defendants’ opposition to the motion since defendants had apparently provided plaintiffs former counsel with 10 boxes of records, which defendants asserted encompassed the current demands by plaintiff. Supreme Court did not abuse its discretion in vacating the order, and its decision is also consistent with the preference for resolving cases on the merits (see Gurin v Pogge, 112 AD3d 1028, 1030 [2013]).

Garry, Rose and Devine, JJ., concur.

Ordered that the order is affirmed, with costs.

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127 A.D.3d 1463, 7 N.Y.S.3d 679, 2015 NY Slip Op 03226, 2015 N.Y. App. Div. LEXIS 3174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-lane-holdings-llc-v-don-realty-llc-nyappdiv-2015.

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