ROMAN v. GALLAGHER

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

Rafael V. ROMAN, respondent, v. Stephanie GALLAGHER, et al., appellants.

Decided: January 27, 2009

A. GAIL PRUDENTI, P.J., ROBERT A. SPOLZINO, WILLIAM E. McCARTHY, and JOHN M. LEVENTHAL, JJ. Stephanie Gallagher and Charles Gallagher, Pelham, N.Y., appellants pro se.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered October 9, 2007, which denied their motion, among other things, for leave to enter a default judgment against the plaintiff on their counterclaims on the ground that the defendants' supplemental papers in support of their motion were not submitted to the court in proper form.   The appeal brings up for review so much of an order of the same court entered March 7, 2008, as denied that branch of the defendants' motion which was for leave to renew their original motion (see CPLR 5517[b] ).

ORDERED that the order entered March 7, 2008, is reversed insofar as reviewed, on the facts and in the exercise of discretion, that branch of the defendants' motion which was for leave to renew their original motion is granted, upon renewal, the order entered October 9, 2007, is vacated, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the defendants' original motion on the merits;  and it is further,

ORDERED that the appeal from the order entered October 9, 2007, is dismissed as academic in light of our determination of the appeal from the order entered March 7, 2008;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The Supreme Court denied the defendants' motion for, inter alia, leave to enter a default judgment against the plaintiff on their counterclaims on the ground that the defendants' supplemental papers in support of their motion were not submitted to the court in proper form.   The court subsequently denied the defendants' motion for, among other things, leave to renew their original motion.

Under the circumstances of this case, that branch of the defendants' motion which was for leave to renew their original motion should have been granted and, upon renewal, the court should have vacated the order entered October 9, 2007, and determined the defendants' original motion on the merits.

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