| Santiago v Valentin |
| 2015 NY Slip Op 01159 |
| Decided on February 10, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 10, 2015
Acosta, J.P., Moskowitz, Richter, Feinman, Clark, JJ.
13868 300206/11
v
Pablo R. Valentin, Defendant-Respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.
Keane & Bernheimer, PLLC, Hawthorne (Thomas J. Keane of counsel), for respondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered September 10, 2013, which denied plaintiff's motion to vacate an order entered against him on default, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion to vacate granted, and the matter remanded for further proceedings.
In light of the strong public policy in favor of deciding cases on their merits, we find that the motion court improvidently exercised its discretion in denying plaintiff's motion to vacate the default order, since plaintiff established that he had a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015[a]). Plaintiff demonstrated that the failure to respond to defendant's summary judgment motion was not wilful, but was purely the result of a misunderstanding by his counsel that is tantamount to law office failure (see Chelli v Kelly Group, P.C., 63 AD3d 632 [1st Dept 2009]; Baldini v New York City Employees Retirement Sys., 254 AD2d 128 [1st Dept 1998]).
Plaintiff provided an attorney's affirmation describing that the failure to submit opposition was due to a delay in receiving an updated medical report from plaintiff's treating physician.
Further, plaintiff explained that after defendant denied his third request to stipulate to an adjournment, he believed the only recourse was to wait for a decision and order from the court, and thereafter, make a motion to vacate the default judgment. As such, there is no evidence in the record that plaintiff's default was due to any deliberate, willful, or contumacious conduct.
In addition to establishing the excusable nature of the default, plaintiff submitted an [*2]affidavit from his treating physician, which demonstrated that he has a potentially meritorious cause of action. Thus, plaintiff "should not be deprived of his day in court by his attorney's ... inadvertent error" (Chelli, 63 AD3d at 634).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 10, 2015
CLERK