[*2]Appeal by defendant from an order of the Small Claims Part of the Justice Court, Town of Wallkill, Orange County (R. Shoemaker, J.), entered March 1, 2002, denying her motion to vacate a default judgment.

Order unanimously reversed without costs and defendant's motion to vacate the default judgment granted.

Plaintiff commenced this small claims action seeking $1,500 that he claimed defendant owed him as her share of a land survey done to determine their property lines. Trial was scheduled for February 8, 2002. plaintiff was present, but defendant failed to appear at either calendar call on that date. A default judgment was then entered.

The court below abused its discretion in denying defendant's motion to vacate the default, which motion was made within five days of entry of judgment. The defendant submitted an affidavit explaining that she had misread the date on the summons and further alleging that she had never agreed to pay any part of a land survey expense to plaintiff. Defendant did not oppose the motion and clearly was not prejudiced by the short delay. In such circumstances, resolution upon the merits is favored (see e.g. Martin v Pitcher, 243 AD2d 1023; Lichtman v Sears, Roebuck & Co., 236 AD2d 373).

We note in passing that, in any event, it appears that the court did not receive proof of claim prior to entering judgment (see CPLR 3215 [f]).
[*3]Decision Date: October 01, 2003