Kalaba v Macy's, Inc.
2019 NY Slip Op 08367 [177 AD3d 501]
November 19, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 1, 2020


[*1]
 Terezina Kalaba et al., Respondents,
v
Macy's, Inc., Appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellant.

Doyle & Broumand, LLP, Bronx (Michael B. Doyle of counsel), for respondents.

Order, Supreme Court, New York County (James Edward D'Auguste, J.), entered March 13, 2019, which, in this action for personal injuries, granted plaintiffs' motion to vacate their default in opposing defendant's motion to strike the complaint, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting plaintiffs' motion pursuant to CPLR 5015 to vacate their default in opposing defendant's motion. Plaintiffs demonstrated that they were unaware that their former counsel had failed to respond to defendant's initial discovery demands and to oppose the motion to strike the complaint (see Hamilton v National Amusements, Inc., 167 AD3d 431 [1st Dept 2018]). Furthermore, the injured plaintiff's affidavit set forth a potentially meritorious negligence claim at this stage of the proceedings and, given the absence of any prejudice to defendant, plaintiffs' claims should be resolved on the merits (see Yea Soon Chung v Mid Queens LP, 139 AD3d 490 [1st Dept 2016]). Concur—Friedman, J.P., Renwick, Richter, Mazzarelli, Oing, JJ.