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EZ Maintenance Ltd., Plaintiff-Appellant v. Stuart Becker Defendant-Respondent.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


November 29, 2010

EZ MAINTENANCE LTD., PLAINTIFF-APPELLANT,
v.
STUART BECKER DEFENDANT-RESPONDENT.

Plaintiff appeals from an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated July 13, 2010, which denied its motion to vacate a default judgment entered against it.

Per curiam.

EZ Maintenance Ltd. v Becker

Appellate Term, First Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 29, 2010

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ

Order (Debra Rose Samuels, J.), dated July 13, 2010, reversed, without costs, motion granted, complaint reinstated and matter remanded to Civil Court for further proceedings.

Under the particular facts underlying this small claims action, the court should have granted plaintiff's motion to vacate the default judgment entered against it, since plaintiff sufficiently demonstrated the preconditions to relief under CPLR 5015(a)(1). Notably, plaintiff presented a compelling excuse for its default -- the inability of its principal witness to appear for trial was occasioned by the birth of the witness' child.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur

Decision Date: November 29, 2010

20101129

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