DePOMPO SEFF v. GENOVESE DRUG STORES INC (2004)

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 9, 2004, which, upon reargument, granted plaintiff's previously denied motion to vacate her default in appearing in response to defendants' summary judgment motion, and restored the motion to the motion calendar on the condition that plaintiff pay defendants $250, unanimously affirmed, without costs.

Under the circumstances presented, the motion court properly exercised its discretion in conditionally granting plaintiff's motion for vacatur (see Kramer v. Edenwald Constr. Co., 261 A.D.2d 284, 690 N.Y.S.2d 259 [1999];  Levy v. Aquasciences Intl., Inc., 179 A.D.2d 566, 579 N.Y.S.2d 56 [1992] ).   Plaintiff submitted timely written opposition to defendants' summary judgment motion demonstrating a meritorious cause of action;  her non-appearance at the oral argument of the motion was demonstrably due to law office failure, was not indicative of any intention to delay or abandon the action and did not cause defendants significant prejudice.

We have considered defendants' remaining arguments and find them unavailing.