Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), dated March 26, 2012. The order granted defendant's motion for leave to reargue its motion to vacate a default judgment that had been entered against it on July 26, 2011, and, upon reargument, in effect, vacated a prior order of the same court (Katherine A. Levine, J.) entered November 28, 2011, which denied the motion and thereupon granted the motion.

ORDERED that the order dated March 26, 2012 is reversed, without costs, and the matter is remitted to the Civil Court for determination by Judge Katherine A. Levine of defendant's motion for leave to reargue its motion to vacate the default judgment. [*2]

In this small claims action, plaintiff seeks to recover the principal sum of $3,563.40, based on defendant's failure to pay him a retroactive wage increase and to make payments on his behalf into an annuity fund. Defendant defaulted in answering, and, following an inquest, plaintiff was awarded the principal sum of $3,563.40. Defendant thereafter moved to vacate the default judgment. In support of its motion, defendant claimed that notice of the action had been mailed to it at the correct street address, but to suite 842 instead of to suite 844, which was its correct mailing address. In opposition to defendant's motion, plaintiff submitted, among other documents, a copy of a signed return receipt for notice of the judgment that had been sent to defendant by certified mail at suite 842. Defendant's motion was denied by order dated November 28, 2011 (Katherine A. Levine, J.), following which defendant moved by order to show cause, which was signed by Judge Levine, for leave to reargue its motion to vacate the default judgment. By order dated March 26, 2012, Judge Pamela L. Fisher granted defendant leave to reargue and, upon reargument, in effect, vacated the order entered November 28, 2011 and granted defendant's motion upon a finding that defendant had shown a reasonable excuse for its default and a meritorious defense. This appeal ensued.

Generally, a motion for leave to reargue a prior motion shall be made, on notice, to the judge who signed the prior order, unless he or she is for any reason unable to hear it (CPLR 2221 [a]). As the record contains no indication that Judge Levine was unable to hear the motion, we conclude that defendant's motion should have been submitted to her, and not to Judge Fisher, and that it was error for Judge Fisher to determine defendant's reargument motion (see Guaman v Tran, 52 AD3d 656 [2008]; Matter of Cellamare v Lakeman, 36 AD3d 905 [2007]; see also Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C:2221:1).

Accordingly, the order of March 26, 2012 is reversed and the matter is remitted to the Civil Court for determination by Judge Katherine A. Levine of defendant's motion for leave to reargue its motion to vacate the default judgment.

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013