| Political Mktg., Int'l, Inc. v Jaliman |
| 2009 NY Slip Op 07998 [67 AD3d 661] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Political Marketing, Int'l, Inc., Respondent, v MichaelJaliman, Appellant. |
—[*1] Kirschenbaum & Phillips, P.C., Levittown, N.Y. (Steven Rosenthal of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals froman order of the Supreme Court, Putnam County (O'Rourke, J.), dated March 25, 2008, whichdenied his motion, in effect, to vacate a prior order of the same court dated January 4, 2008,granting the plaintiff's motion for summary judgment on the complaint upon his default inopposing, and upon vacatur, to deny the plaintiff's motion for summary judgment.
Ordered that the order dated March 25, 2008 is reversed, on the law and in the exercise ofdiscretion, with costs, the defendant's motion is granted, the order dated January 4, 2008 isvacated, and the plaintiff's motion for summary judgment on the complaint is denied.
A defendant seeking to vacate an order entered upon his or her default in opposing a motionmust demonstrate both a reasonable excuse for the default and a meritorious defense to the action(see CPLR 5015 [a] [1]; WasteMgt. of N.Y., Inc. v Bedford-Stuyvesant Restoration Corp., 13 AD3d 362 [2004];Greenpoint Sav. Bank v Hill, 228 AD2d 412 [1996]). The defendant demonstrated areasonable excuse for his default by showing that the default resulted from documented lawoffice failure (see CPLR 2005; Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr.Corp., 45 AD3d 634, 636 [2007]). He also established the existence of a meritoriousdefense (see Bergen v 791 Park Ave. Corp., 162 AD2d 330, 331 [1990]; see alsoBusone v Bellevue Maternity Hosp., 266 AD2d 665, 667 [1999]; Winney v County ofSaratoga, 252 AD2d 882, 884 [1998]), by setting forth facts sufficient to make out a primafacie showing that it was his campaign committee, and not him, which contracted with theplaintiff for the services in question, and that he did not assume his campaign committee's debtto the plaintiff (see General Obligations Law § 5-701 [a] [2]). Accordingly, and asthe defendant also established the existence of a triable issue of fact constituting a meritoriousopposition to the plaintiff's motion for summary judgment, his motion should have been grantedand the plaintiff's motion for summary judgment should have been denied (see Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389 [2008]). Covello, J.P., Santucci, Chambers and Lott, JJ., concur.