AND FLORIDA NOTES LLC v. Amit Louzon, Defendant–Appellant. (2019)

Order, Supreme Court, New York County (Judith N. McMahon, J.), entered March 6, 2018, which granted plaintiff's order to show cause to vacate the order dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's allegations of law office failure, i.e., that plaintiff's counsel failed to appear for the rescheduled conference in that he inadvertently scheduled the wrong date, constituted a reasonable excuse for the default (see Dokmecian v. ABN AMRO N. Am., 304 A.D.2d 445, 758 N.Y.S.2d 638 [1st Dept. 2003] ).  Plaintiff also demonstrated that he had a meritorious defense (see CPLR 5015[a][1];  Matter of Jones, 128 A.D.2d 403, 404, 512 N.Y.S.2d 689 [1st Dept. 1987] ).  In a prior appeal we denied defendant's motion for summary judgment (149 A.D.3d 401, 51 N.Y.S.3d 59 [1st Dept. 2017] ).  Consistent with that decision we find that plaintiff has a claim that warrants a determination after trial.

The order granting the motion to vacate the default was appealable under CPLR 5512(a) and was appealable as of right under CPLR 5513(a) and 5701(a)(2).  Contrary to defendant's contention, the inclusion of “without prejudice” does not render an order nonappealable (see Moleon v. Kreisler Borg Florman Gen. Constr. Co., 304 A.D.2d 337, 339, 758 N.Y.S.2d 621 [1st Dept. 2003] ).  Notably, the order granting the motion to vacate the default does not include the language “without prejudice,” as that language is only included in the dismissal order.