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Palisades Collection, LLC v. Estepan

Supreme Court of New York, First Department

June 17, 2013

PALISADES COLLECTION, LLC, Plaintiff
v.
Biarka S. ESTEPAN, Defendant-Appellant. No. 570836/11.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (José A. Padilla, Jr., J.), entered February 16, 2012, which denied her motion, denominated as one for leave to renew but treated as one for leave to reargue, her prior motion to vacate a default judgment.

Present: LOWE, III, P.J., SCHOENFELD, TORRES, JJ.

PER CURIAM.

Order (José A. Padilla, Jr., J.), entered February 16, 2012, reversed, with $10 costs, motion granted, default judgment vacated, and matter remanded for further proceedings.

Although renewal motions generally should be based on newly discovered facts that could not be offered on the prior motion ( see CPLR 2221[e] ), courts have discretion to relax this requirement and grant such a motion in the interest of justice ( see Menjia v. Nanni, 307 A.D.2d 870, 871 [2003] ). In the circumstances here present, and to achieve substantial fairness ( Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 376-377 [2001] ), we favorably exercise our discretion and grant defendant's renewed motion to vacate the default judgment, since defendant offered a " reasonable justification" for failing to submit the new evidence on her original pro se motion and the new evidence " would change the prior determination" (CPLR 2221[e][2],[3] ). In this connection, the record on renewal establishes both a reasonable excuse for defendant's default and a potentially meritorious defense to the underlying consumer debt collection action ( see Gomez v. Delacruz, 27 A.D.3d 219 [2006] ). Thus, considering the strong policy favoring resolution of cases on the merits ( see Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 413-414 [2011] ), and since plaintiff failed to show that the delay caused it any legal prejudice, we relieve defendant of her unintended default.

Defendant's apparent knowledge of the existence of the judgment was not a bar to vacatur relief in the circumstances of this case, where no showing was made that defendant " explicitly or implicitly participated in the action, thus acknowledging the validity of the judgment, or demonstrated a lack of good faith or delay in asserting [her] rights" ( HSBC Bank USA v. A & R Trucking Co., Inc., 66 A.D.3d 606 [2009] ). We note, too, that in an appropriate case, the court's inherent discretionary power to vacate a default is not subject to the one-year limitation of CPLR 5015[a][1] ( see Siegel, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 5015:6).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


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