Opinion
8994 Index 153561/14
04-16-2019
CORNWALL WAREHOUSING, INC., et al., Plaintiffs-Appellants, v. Jonathan C. LERNER, et al., Defendants-Respondents.
Berg & David, PLLC, Brooklyn (Shane Wax of counsel), for appellants. Bressler, Amery & Ross, P.C., New York (Michael T. Hensley of counsel), for respondents.
Berg & David, PLLC, Brooklyn (Shane Wax of counsel), for appellants.
Bressler, Amery & Ross, P.C., New York (Michael T. Hensley of counsel), for respondents.
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Carmen Victoria St. George, J.), entered on or about November 27, 2017, which denied plaintiffs' motion to vacate an order, same court (Paul Wooten, J.), entered on or about November 13, 2015, granting, on default, defendants' motion to strike the complaint, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion granted and the complaint reinstated.
Plaintiffs demonstrated a reasonable excuse for their default ( CPLR 5015[a][1] ), based on law office failure, as detailed in the affirmation of their former counsel who miscalendared the motion ( CPLR 2005 ; People's United Bank v. Latini Tuxedo Mgt., LLC, 95 A.D.3d 1285, 1286, 944 N.Y.S.2d 909 [2d Dept. 2012] ). Plaintiffs then moved to vacate the order entered on their default, showing that they had a meritorious defense to the underlying motion to strike their complaint pursuant to CPLR 3126 ©, since they were not in default of any disclosure order (see John Quealy Irrevocable Life Ins. Trust v. AXA Equit. Life Ins. Co., 151 A.D.3d 592, 593, 58 N.Y.S.3d 26 [1st Dept. 2017], lv dismissed 30 N.Y.3d 1091, 69 N.Y.S.3d 859, 92 N.E.3d 1249 [2018] ; DaimlerChrysler Ins. Co. v. Seck, 82 A.D.3d 581, 582, 919 N.Y.S.2d 20 [1st Dept. 2011] ). Plaintiffs also demonstrated a potentially meritorious cause of action by providing the affidavit of their president setting forth the basis of their legal malpractice claim (see Cheri Rest., Inc. v. Eoche, 144 A.D.3d 578, 579–580, 42 N.Y.S.3d 113 [1st Dept. 2016] ).
In light of the strong public policy of this State to dispose of cases on their merits, the court improvidently exercised its discretion in denying plaintiffs' motion to vacate the order entered on default ( DaimlerChrysler Ins. Co. v. Seck, 82 A.D.3d at 582, 919 N.Y.S.2d 20 ; see Chelli v. Kelly Group, P.C., 63 A.D.3d 632, 883 N.Y.S.2d 26 [1st Dept. 2009] ).