BAZAC v. The Pig Restaurant, Inc., etc., et al., Defendants-Appellants.

Reset A A Font size: Print

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

Mircea BAZAC, et al., Plaintiffs-Respondents, v. ODELIA ENTERPRISES CORP., et al., Defendants, The Pig Restaurant, Inc., etc., et al., Defendants-Appellants.

Decided: May 23, 2000

TOM, J.P., ELLERIN, LERNER, ANDRIAS and SAXE, JJ. Dean Spencer Weltman, for Plaintiffs-Respondents. Robert H. Goldberg, for Defendants-Appellants.

Order, Supreme Court, New York County (Edward Lehner, J.), entered August 13, 1999, which, in an action by building residential tenants against, among others, defendants-appellants commercial tenant and subtenant of the ground floor premises where a fire in the building allegedly started, insofar as appealed from, denied appellants' cross motions to dismiss the complaint as against them as abandoned, unanimously affirmed, with costs.

Plaintiffs' attorneys' failure to track the progress of the action against appellants was a law office failure that reasonably accounts for their failure to move for default judgments as against appellants within a year after their respective defaults.   Appellants, a commercial tenant and subtenant who were sued along with the building's corporate owner and three of the latter's principals, were the only defendants who failed to timely answer in an action that was one of several related actions involving the same fire, many of the same parties, and a motion to consolidate in which appellants actively participated.   In these circumstances, the claimed law office failure is excusable, particularly where appellants have not suffered any prejudice as a result of the delay (CPLR 3215[c];  2005).   Plaintiffs' showing of merit is adequate for present purposes.