SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
January 24, 2012
STERN KEISER PANKEN & WOHL, LLP,
HARTLEY PERSONNEL ADMINISTRATIVE SERVICES, INC.,
Appeal from an order of the City Court of White Plains, Westchester County (Brian Hansbury, J.), entered July 26, 2010.
Stern Keiser Panken & Wohl, LLP v Hartley Personnel Admin. Servs., Inc.
Decided on January 24, 2012
Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: LaCAVA, J.P., NICOLAI and IANNACCI, JJ
The order denied defendant's motion to open its default.
ORDERED that the order is reversed, without costs, defendant's motion to open its default is granted and the matter is remitted to the City Court for all further proceedings.
Plaintiff commenced this action to recover the sum of $8,250 based on claims of misrepresentation, unjust enrichment, and breach of contract. A preliminary conference was scheduled, and a notice of the conference was mailed by the clerk of the City Court to defendant's counsel's office. However, defendant failed to appear or otherwise contact the court. In an order dated June 15, 2010, the City Court found defendant in default for failing to appear at the preliminary conference and awarded plaintiff the principal sum of $8,250. In support of defendant's motion to open its default, its counsel claimed that he had never received any notice of the scheduled conference and had, therefore, been unaware that he was required to be in attendance. Defendant further argued that its verified answer had set forth several meritorious defenses.
A defendant seeking to open a default is required to demonstrate a reasonable excuse for the default and the existence of a meritorious defense to the action (see CPLR 5015 [a] ; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 ). Under the circumstances presented, we find that defendant offered a reasonable excuse for defaulting and a meritorious defense to the action.
Accordingly, the order denying defendant's motion to open its default is reversed, the motion is granted and the matter is remitted to the City Court for all further proceedings. LaCava, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 24, 2012
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