WALTON v. PEREZ (2024)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about December 20, 2023, which, insofar as appealed from as limited by the briefs, granted defendants’ motion to vacate the default judgment, unanimously affirmed, without costs.

The motion court did not improvidently exercise its discretion in considering the motion to vacate in the interest of justice (see JPMorgan Chase Bank, N.A. v. Baptiste, 188 A.D.3d 848, 850, 136 N.Y.S.3d 346 [2d Dept. 2020];  see also Johnson v. Sam Minskoff & Sons, 287 A.D.2d 233, 236, 735 N.Y.S.2d 503 [1st Dept. 2001]).  Although defendants have a history of defaults and delays, many were readily excusable and the motion court was entitled, in its discretion to accept their proffered excuse of law office failure, especially considering the stipulation to adjourn the motion for a default judgment.  We reach this conclusion in light of the policy of deciding actions on the merits, the existence of potentially meritorious defenses, the extreme prejudice to defendants if vacatur is denied, the comparatively lesser prejudice to be suffered by plaintiff if the default is vacated, and the court's efforts to mitigate such prejudice by awarding plaintiff a trial preference and monetary sanctions (see CPLR 2005;  Velasquez v. New York City Tr. Auth./MTA, 198 A.D.3d 555, 556, 152 N.Y.S.3d 823 [1st Dept. 2021];  Marine v. Montefiore Health Sys., Inc., 129 A.D.3d 428, 429, 9 N.Y.S.3d 580 [1st Dept. 2015]).

We decline to consider plaintiff's argument that the motion to vacate should be denied as successive because it was raised for the first time on appeal.  Insofar as we consider the instant motion to vacate, it is appropriate to consider anything submitted in support thereof, including the individual defendants’ affidavits of merit.

We have considered the remaining arguments and find them unavailing.