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Williams v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 30, 2010

ANDERSON WILLIAMS, ET AL., PLAINTIFFS-APPELLANTS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS, THE NEW YORK CITY TRANSIT AUTHORITY, ET AL., DEFENDANTS-RESPONDENTS.

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.

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.

Mazzarelli, J.P., Sweeny, Nardelli, Acosta, Manzanet-Daniels, JJ.

7153/05

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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100330

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