SCRITCHFIELD v. PERRY

Reset A A Font size: Print

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

Diana M. SCRITCHFIELD, as Administratrix of the Estate of Mitchell Nicholas Scritchfield, a/k/a Mitchell Scritchfield, Deceased, Respondent, v. Arlette PERRY, d/b/a Woodlawn Hotel, J.A.C.E.P., Ltd., d/b/a Woodlawn Hotel, Appellants, et al., Defendant.  (Appeal No. 1.)

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, HAYES, BALIO and BOEHM, JJ. Randy H. Gugino, Amherst, for Defendants-Appellants. Matusick, Spadafora & Verrastro by Joseph Bergen, Buffalo, for Plaintiff-Respondent.

Arlette Perry, d/b/a Woodlawn Hotel, and J.A.C.E.P., Ltd., d/b/a Woodlawn Hotel (defendants), moved for summary judgment dismissing the complaint.   Plaintiff defaulted in responding, and Supreme Court granted the motion.   Before an order was signed or entered, plaintiff moved for additional time to respond to the motion and “to vacate any default on the part of [plaintiff] thereto”.   Defendants cross-moved to vacate plaintiff's note of issue and for further discovery in the event that plaintiff's motion was granted.   The court granted plaintiff's motion and adjourned oral argument on defendants' cross motion.

 A court has the inherent power, sua sponte or on motion of a party, to reconsider and vacate its prior decision before issuing an order thereon (see, American Re-Ins. Co. v SGB Universal Bldrs. Supply, 160 A.D.2d 586, 554 N.Y.S.2d 527;  Vinciguerra v. Jameson, 153 A.D.2d 452, 454, 551 N.Y.S.2d 691;  Levinger v. General Motors Corp., 122 A.D.2d 419, 420, 504 N.Y.S.2d 819).   In light of the facts that plaintiff made the motion to vacate only four days after the motion for summary judgment was granted, that plaintiff's default in responding to the motion was the result of law office failure caused by the recurring illness of plaintiff's counsel and that defendants were not prejudiced by the vacatur, the court did not abuse its discretion in granting plaintiff additional time to respond to the motion for summary judgment (see, CPLR 2004;  see also, Corbett v. Zedayko, 151 A.D.2d 941, 545 N.Y.S.2d 216).

Order unanimously affirmed with costs.

MEMORANDUM: