CONSORTIUM CONSULTING GROUP INC v. Hern Tsai, et al., Defendants. (2003)

Supreme Court, Appellate Division, First Department, New York.

CONSORTIUM CONSULTING GROUP, INC., Plaintiff-Appellant, v. Chee TSAI, Defendant-Respondent, Hern Tsai, et al., Defendants.

Decided: December 09, 2003

BUCKLEY, P.J., ANDRIAS, SAXE, WILLIAMS, GONZALEZ, JJ.

Nancy J. Silver & Herbert J. Silver, for Plaintiff-Appellant. Hyman Silverglad, for Defendant-Respondent.

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about March 24, 2003, which, in an action to recover a real estate brokerage commission, granted defendant-respondent's motion to vacate the default judgment entered against him, unanimously affirmed, without costs.

Defendant's motion to vacate his default on the ground of excusable neglect was timely made within one year of service of the judgment (CPLR 5015[a] [1] ). Defendant satisfactorily explains that his failure to oppose plaintiff's motion for summary judgment and attend the ensuing proceedings was due to his lack of proficiency in English and an inability to retain counsel. We are also satisfied that plaintiff was not prejudiced by the four-month delay between the default and the making of the instant motion to vacate the default. Defendant's claim that plaintiff was advised that the contract of sale was not to be executed until he had obtained necessary powers of attorney from his co-owners of the property shows a meritorious defense.

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