NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
November 12, 2009
RAFAEL RODRIGUEZ, PLAINTIFF-RESPONDENT,
JIMMY RODRIGUEZ, DEFENDANT-APPELLANT.
Order, Supreme Court, Bronx County (Howard Silver, J.), entered September 19, 2008, which, to the extent appealable, denied defendant's motion to renew his motion to vacate a default judgment and restore the case to the trial calendar, unanimously reversed, on the facts, without costs, renewal granted and, upon renewal, the motion to vacate the default granted and the matter remanded for trial.
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.
Gonzalez, P.J., Andrias, Saxe, Renwick, Manzanet-Daniels, JJ.
Defendant's attorney's representation that a former employee had been misdirecting or misplacing mail provides a reasonable excuse for his failure to present such evidence of law office failure on defendant's original motion to vacate the default judgment as well as his failure to appear in court on various dates (see Solowij v Otis Elev. Co., 260 AD2d 226 ). Defendant's affidavit shows a meritorious defense.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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