VOLLARO v. BEVILACQUA (2006)

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated September 15, 2005, which granted the defendant's motion for leave to reargue his prior motion to vacate his default in appearing at trial, which was determined by order of the same court dated June 15, 2005, and upon reargument, granted the defendant's motion to vacate his default.

ORDERED that the order is affirmed, without costs or disbursements.

 In an order dated December 16, 2004, the Supreme Court granted a motion by former counsel for the defendant to withdraw from the case, and adjourned the trial date to January 27, 2005, to allow the defendant to obtain new counsel (see CPLR 321[b] ).  The defendant's assertion that he did not receive notice of the scheduled date of trial on January 27, 2005, constituted a valid and reasonable excuse for his failure to appear on that trial date (see Simmons v. Pantoja, 306 A.D.2d 399, 400, 760 N.Y.S.2d 881;  Lohmann v. Castleton Gallery, 252 A.D.2d 482, 483, 675 N.Y.S.2d 123;  Krebs v. Cabrera, 250 A.D.2d 736, 737, 671 N.Y.S.2d 995).   Contrary to the plaintiffs' contention, notice of the new trial date to former counsel did not constitute notice to the defendant since former counsel was no longer representing the defendant (cf. Candeloro v. Candeloro, 133 A.D.2d 731, 732, 520 N.Y.S.2d 19).   Furthermore, the defendant promptly obtained new counsel and moved to vacate his default.   The default was not intentional or the result of bad faith (see Simmons v. Pantoja, supra;  Krebs v. Cabrera, supra;  Goldstein v. Mazza, 88 A.D.2d 987, 452 N.Y.S.2d 64).   In addition, the defendant's verified answer and affidavit set forth allegations sufficient to make out a prima facie showing of a meritorious defense (see CPLR 105[u];  65 N. 8 St. HDFC v. Suarez, 18 A.D.3d 732, 733, 795 N.Y.S.2d 724;  Lichtman v. Sears, Roebuck & Co., 236 A.D.2d 373, 653 N.Y.S.2d 25;   Richard Kranis, P.C. v. European American Bank, 208 A.D.2d 904, 905, 617 N.Y.S.2d 889).

Accordingly, the Supreme Court providently exercised its discretion in granting the defendant's motion for leave to reargue and, upon reargument, in granting the defendant's motion to vacate his default in appearing at trial on January 27, 2005.