Nembhard v 97 Seaview, LLC (2013 NY Slip Op 52100(U))

Nembhard v 97 Seaview, LLC

2013 NY Slip Op 52100(U) [41 Misc 3d 146(A)]

Decided on December 12, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Charmaine Nembhard, Appellant, —

against

97 Seaview, LLC, Defendant, -and- RONALD A. LAVINE, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), dated April 17, 2012, and an order of the same court (Ingrid Joseph, J.) entered June 19, 2012. The order dated April 17, 2012 dismissed the complaint with prejudice upon plaintiff's failure to appear for trial. The order entered June 19, 2012 denied plaintiff's motion, in effect, to open the default and restore the action to the calendar.

ORDERED that the appeal from the order dated April 17, 2012 is dismissed as no appeal lies from an order entered on the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the order entered June 19, 2012 is reversed, without costs, and plaintiff's motion, in effect, to open the default and restore the action to the calendar is granted on condition that plaintiff's attorney pay the attorney for defendant Ronald A. Lavine the sum of $1,200 within 30 days of the date of the order entered hereon; otherwise, the order is affirmed, without costs.

In this action to recover for breach of contract, the Civil Court (Noach Dear, J.) dismissed the complaint upon plaintiff's default. Shortly thereafter, plaintiff moved, in effect, to open the default and restore the case to the calendar. By order entered June 19, 2012, the Civil Court (Ingrid Joseph, J.) denied the motion.

While the determination of what constitutes a reasonable excuse sufficient to open a default lies within the sound discretion of the trial court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), given the excuse proffered by plaintiff's attorney that he was engaged at the time of trial, and the fact that the verified complaint sets forth sufficient facts establishing a possible meritorious cause of action (see CPLR 105 [u]), in the interest of justice, we grant plaintiff's motion, in effect, to open the default and restore the action to the calendar on condition that plaintiff's attorney pay the attorney for defendant Ronald A. Lavine the sum of $1,200.