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Kitts v. Blossom North

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


February 11, 2010

SUSAN B. KITTS, APPELLANT,
v.
BLOSSOM NORTH, LLC, DOING BUSINESS AS BLOSSOM NORTH NURSING AND REHABILITATION CENTER, RESPONDENT. (APPEAL NO. 2.)

Appeal from an order of the Supreme Court, Monroe County (John J. Ark, J.), entered March 23, 2009. The order granted the motion of defendant and vacated two default judgments entered against it.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 31, 2010

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum

Plaintiff appeals from an order that granted the motion of defendant seeking to vacate two default judgments entered against it as a consequence of its failure to answer the complaint. Contrary to plaintiff's contentions, defendant "establish[ed] both a reasonable excuse for the default[s] and the existence of a meritorious defense" with respect to each default judgment (Genesee Mgt. v Barrette, 4 AD3d 874, 875 [2004]; see Bilodeau-Redeye v Preferred Mut. Ins. Co., 38 AD3d 1277 [2007]; Markson v Courtney, 161 AD2d 1085, 1086 [1990]). "Given the brief overall delay, the promptness with which defendant moved to vacate the judgment[s], the lack of any intention on defendant's part to abandon the action, plaintiff's failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits," we conclude that Supreme Court properly granted defendant's motion (Mayville v Wal-Mart Stores, 273 AD2d 944, 945 [2000]).

Present---Smith, J.P., Peradotto, Carni, Pine and Gorski, JJ.

20100211

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