| Evolution Impressions, Inc. v Lewandowski |
| 2009 NY Slip Op 00893 [59 AD3d 1039] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Evolution Impressions, Inc., Respondent, v James D. Lewandowskiet al., Appellants. |
—[*1] Woods Oviatt Gilman LLP, Rochester (Donald W. O'Brien, Jr., of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredFebruary 28, 2007. The order, insofar as appealed from, denied that part of the motion ofdefendants seeking to vacate a default order and judgment in its entirety.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, that part of the motion seeking to vacate the default order and judgment in itsentirety is granted, and the order and judgment entered August 4, 2006 is vacated in its entirety.
Memorandum: Defendants appeal from an order denying in part their motion seeking, interalia, to vacate a default order and judgment entered against them following their failure tooppose plaintiff's motion for summary judgment on the complaint. It is well settled that, in orderto establish their entitlement to vacatur of the default order and judgment, defendants wererequired to establish "both a reasonable excuse for the default and the existence of a meritoriousdefense" (Wilcox v U-Haul Co., 256 AD2d 973, 973 [1998]; see generally CPLR5015 [a] [1]). "[A]lthough the decision whether to vacate a default judgment rests within thesound discretion of the trial court, it is equally true that a disposition on the merits is favored"(Wilcox, 256 AD2d at 974 [internal quotation marks omitted]).
We agree with defendants that they established a reasonable excuse for their default.Defendants established that the default resulted from confusion over the substitution of counsel(see generally Lovisa Constr. Co. v Facilities Dev. Corp., 148 AD2d 913, 914 [1989])and that, at the time of the default, they had a reasonable belief that their legal interests werebeing adequately protected by counsel (see Clark v Sherwood, 117 AD2d 973 [1986];cf. Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]). We further conclude thatdefendants met their burden of establishing a meritorious defense by demonstrating "that there issupport in fact for [their] . . . defenses" (Bilodeau-Redeye v Preferred Mut. Ins. Co., 38 AD3d 1277, 1277[2007] [internal quotation marks omitted]), i.e., that there are issues of [*2]fact that preclude summary judgment in favor of plaintiff (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Furthermore, thereare unresolved issues between the parties that require further litigation even if we were to denythe relief sought by defendants, and we conclude under the circumstances of this case that bothfairness and judicial economy warrant the resolution of this case on the merits (see Estate of Witzigman v Drew, 48AD3d 1172, 1173 [2008]; see generally Alliance Prop. Mgt. & Dev. v Andrews Ave.Equities, 70 NY2d 831, 832-833 [1987]). Present—Scudder, P.J., Centra, Fahey, Pineand Gorski, JJ.