NUNEZ v. BERTRAM (2005)

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

Francisco NUNEZ, appellant, v. Robert T. BERTRAM, Jr., et al., respondents.

Decided: December 12, 2005

ROBERT W. SCHMIDT, J.P., SONDRA MILLER, WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and ROBERT J. LUNN, JJ.

De Caro & De Caro, P.C., Harrison, N.Y. (Philip A. De Caro of counsel), for appellant. O'Connor, Redd, Gollihue & Sklarin, LLP, White Plains, N.Y. (Joseph A. Orlando of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered November 4, 2004, which granted the defendants' motion, inter alia, to vacate their default in appearing or answering the complaint.

ORDERED that the order is affirmed, with costs.

Under the circumstances, including, inter alia, the reasonable excuse offered by the defendants for their delay in answering, the existence of a possible meritorious defense, the lack of any evidence of willfulness, the absence of prejudice to the plaintiffs, and public policy in favor of resolving cases on the merits, the Supreme Court providently exercised its discretion in granting the defendants' motion, among other things, to vacate their default (see CPLR 5015[a][1]; Bunch v. Dollar Budget, 12 A.D.3d 391, 783 N.Y.S.2d 829; Orwell Bldg. Corp. v. Bessaha, 5 A.D.3d 573, 574, 773 N.Y.S.2d 126; Sippin v. Gallardo, 287 A.D.2d 703, 703-704, 732 N.Y.S.2d 62; Khanna v. Premium Food & Sports Enter., 279 A.D.2d 508, 509, 720 N.Y.S.2d 349).

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