CASIANO v. CITY OF NEW YORK

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

Edgar CASIANO, Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants-Appellants.

Decided: December 30, 1997

Before MURPHY, P.J., and SULLIVAN, RUBIN, TOM and MAZZARELLI, JJ. Norman Fraiden, for Plaintiff-Respondent. Timothy J. O'Shaughnessy, for Defendants-Appellants.

Order, Supreme Court, New York County (Jane Solomon, J.), entered May 15, 1996, which denied defendants' motion to vacate their default, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted on condition that defendants pay $3000 to plaintiff's attorneys to cover the costs of the motion to vacate.

While defendants' excuse for their default, i.e. law office failure by reason of understaffing, is not particularly compelling, their submissions upon the within timely motion for vacatur make it clear that they possess a meritorious defense and that the default was not intentional.   Accordingly, we believe that this is not an appropriate case for departure from this state's strong preference for resolving controversies upon the merits and grant defendants' motion subject to their satisfaction of the above-noted condition.

MEMORANDUM DECISION.