MAYVILLE v. WAL MART STORES INC (2000)

Supreme Court erred in denying the motion of defendant to vacate a $175,000 default judgment entered against it in plaintiff's action to recover for personal injuries sustained as a result of a criminal act in defendant's store.   Defendant demonstrated a reasonable excuse for its default in appearing in the action and a meritorious defense to the complaint (see, Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;   Yacone v. Ryan Homes, 216 A.D.2d 963, 629 N.Y.S.2d 159;  Bernardo v. USAir Group, 175 A.D.2d 642, 572 N.Y.S.2d 271;  Price v. Polisner, 172 A.D.2d 422, 422-423, 568 N.Y.S.2d 796).   Given the brief overall delay, the promptness with which defendant moved to vacate the judgment, the lack of any intention on defendant's part to abandon the action, plaintiff's failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits, we conclude that defendant's default in appearing must be excused (see, Cerrone v. Fasulo, 245 A.D.2d 793, 794, 665 N.Y.S.2d 761;  Dwyer v. West Bradford Corp., 188 A.D.2d 813, 815, 591 N.Y.S.2d 92;  Zablocki v. Straley, 173 A.D.2d 1015, 1016, 569 N.Y.S.2d 848).

Order unanimously reversed on the law without costs, motion granted and judgment vacated.

MEMORANDUM: