Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered May 6, 2008. The order denied plaintiff's motion to vacate a default judgment.

ORDERED that the order is reversed without costs and plaintiff's motion to vacate the default judgment is granted.

While a motion to vacate a default judgment is generally addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), the record on appeal does not support the finding of the Civil Court that the case had been stricken and restored four times. Instead, the record indicates that the case had only been restored twice, once by plaintiff and once by defendant.

Accordingly, as plaintiff offered a reasonable excuse for his default and showed that both his cause of action and his defense to defendant's counterclaim have arguable merit, his motion to vacate the default judgment is granted (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 08, 2009