Williams v. City of New York

71 A.D.3d 605, 897 N.Y.S.2d 99

Opinion

Order, Supreme Court, Bronx County (Larry Schachner, J.), entered June 9, 2009, to the extent appealed from, as limited by the briefs, which upon granting plaintiffs’ motion to vacate orders entered on default, also granted the motions of defendants-respondents New York City Transit Authority and Manhattan and Bronx Surface Transit Authority, and DeMicco Brothers, Inc. for summary judgment dismissing the complaint on the merits as against those defendants, unanimously reversed, on the law, without costs, the motions for summary judgment dismissal denied, the complaint reinstated, and the matter remanded for a determination of the summary judgment motions on the merits after briefing of the issue by plaintiffs.

The motion court erred in granting summary judgment dismissal on the merits inasmuch as the showing of merit for vacatur of the default orders was different than the more extensive showing necessary to defeat summary judgment, the parties had not charted a course for summary judgment in addressing plaintiffs’ motion to vacate the orders entered on default, and plaintiffs were prejudiced insofar as their merits showing was limited to the issue of vacatur (see Goodsill v Middleburgh Little League, 213 AD2d 843 [1995]). Consequently, we remand as indicated. Concur—Mazzarelli, J.P., Sweeny, Nardelli, Acosta and Manzanet-Daniels, JJ.