| D & W Constr. v Israel |
| 2008 NY Slip Op 07083 [54 AD3d 889] |
| September 23, 2008 |
| Appellate Division, Second Department |
| D & W Construction, Respondent, v Milius Israel et al.,Appellants. |
—[*1] Jeanette M. Westphal, New York, N.Y., for respondent.
In an action to recover damages for breach of contract, the defendants appeal from ajudgment of the Supreme Court, Westchester County (Friedman, J.), dated July 9, 2007, which,upon an order of the same court (Colabella, J.), entered January 30, 2007, denying the defendants'motion, in effect, to vacate an order of the same court (Colabella, J.), entered September 12,2006, sua sponte, striking their answer pursuant to 22 NYCRR 202.27 upon their default inappearing at a preliminary conference, is in favor of the plaintiff and against them in the principalsum of $40,000.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, withcosts, the motion to vacate the order entered September 12, 2006 is granted, and the order enteredJanuary 30, 2007 is modified accordingly.
The defendants' assertion that they never received notice of the scheduled preliminaryconference constituted a valid and reasonable excuse for their failure to appear at that conference(see Birky v Katsilogiannis, 37AD3d 631, 631-632 [2007]; Vollaro v Bevilacqua, 33 AD3d 910 [2006]; Adamo v State of New York, 13 AD3d472 [2004]). Furthermore, the defendants made a prima facie showing of a potentiallymeritorious defense (see Vollaro vBevilacqua, 33 AD3d 910 [2006]; Lichtman v Sears, Roebuck & Co., 236 AD2d373 [1997]). Accordingly, the defendants' motion to vacate the order sua sponte striking theanswer upon their default in appearing at the preliminary conference should have been granted(see CPLR 5015 [a] [1]).[*2]
We reject the plaintiff's alternative argument that themotion to vacate was made only on behalf of a single "defendant" (see Parochial Bus Sys. vBoard of Educ. of City of N.Y., 60 NY2d 539, 544-545 [1983]). Under the circumstances ofthis case, it is appropriate to disregard the clerical error in the motion and to treat the motion ashaving been made by both defendants (see CPLR 2001; Parochial Bus Sys. v Boardof Educ. of City of N.Y., 60 NY2d at 544-545). Rivera, J.P., Florio, Angiolillo, McCarthyand Chambers, JJ., concur.