OSBORNE v. Lextel Communications, Inc. Respondent. (2008)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered October 1, 2007, insofar as it denied respondent Jones's motion to vacate an order, same court and Justice dated July 2, 2007, granting on default petitioner's motion for, inter alia, a final order of dissolution of respondent corporation, unanimously reversed, on the law, with costs, and the motion to vacate the July 2, 2007 order granted.   Appeal from that portion of the October 1, 2007 order that denied renewal unanimously dismissed as academic.   Appeal from that portion of the order that denied reargument unanimously dismissed as taken from a nonappealable paper.

Respondent demonstrated that he had no intention to abandon his defense of the petition and that his counsel honestly believed the motion had been adjourned, due in part to a pending motion by respondent's incoming counsel (see ICBC Broadcast Holdings-NY, Inc. v. Prime Time Adv., Inc., 26 A.D.3d 239, 810 N.Y.S.2d 40 [2006];  Cannon v. Ireland's Own, Inc., 21 A.D.3d 264, 799 N.Y.S.2d 492 [2005] ).   Contrary to petitioner's assertion, there is no evidence in the record that respondent's counsel knew about the hearing and willfully chose not to attend.   Respondent also raised potentially meritorious defenses to petitioner's claims.