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Auerbach v. Tregerman

Supreme Court of New York, First Department

May 28, 2013

Neal Auerbach, D.D.S., Plaintiff-Appellant,
v.
Irv Tregerman, D.D.S., Defendant-Respondent.

Ira Daniel Tokayer, New York, for appellant.

Gallet Dreyer & Berkey, LLP, New York (Adam M. Felsenstein of counsel), for respondent.

Mazzarelli, J.P., Andrias, DeGrasse, Freedman, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered January 10, 2013, which, to the extent appealed from as limited by the briefs, granted defendant's motion to vacate an order entered upon his default, unanimously affirmed, without costs.

The court properly exercised its discretion in granting the motion, given the lack of evidence that the default was willful or part of a pattern of dilatory conduct and the strong public policy in favor of disposing of cases on their merits (see DaimlerChrysler Ins. Co. v Seck, 82 A.D.3d 581, 582 [1st Dept 2011]). Additionally, the default was purportedly caused by innocent law office failure (see Goodwin v New York City Hous. Auth., 78 A.D.3d 550, 551 [1st Dept 2010]), and defendant has demonstrated at least a colorable defense, as the appeal pending from a prior action will likely also be dispositive on the merits of plaintiff's motion for summary judgment in this action.


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