DOSIAK v. JAVINO (2022)

Supreme Court, Appellate Term, New York,

Bennett DOSIAK, Respondent, v. Dale Robert JAVINO, Appellant.

2022-422 S C

Decided: December 22, 2022

PRESENT: JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ.

Dale Robert Javino, appellant pro se. Victor A. Carr & Associates, for respondent (no brief filed).

ORDERED that the order is reversed, without costs, and respondent's motion to vacate the default final judgment is granted.

In this commercial nonpayment proceeding, respondent appeals from an order of the District Court dated April 6, 2022, which denied his motion to vacate a default final judgment of that court entered March 17, 2022 upon his failure to appear at a scheduled hearing. The final judgment awarded petitioner possession and the sum of $25,500.

Upon a review of the record, we find that respondent established both elements required to prevail on his motion to vacate the final judgment based on excusable default: an reasonable excuse for his default and a potentially meritorious defense to the proceeding (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Biffer v Alt Floor & Wall Covering, LLC, 65 Misc 3d 151[A], 2019 NY Slip Op 51878[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).

Accordingly, the order is reversed and respondent's motion to vacate the default final judgment is granted.

GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.

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