| Khanal v Sheldon |
| 2010 NY Slip Op 04958 [74 AD3d 894] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Tara Khanal, Respondent, v Dave Sheldon, Also KnownAs David Sheldon, Appellant, et al., Defendant. |
—[*1] Sweeney, Gallo, Reich & Bolz, LLP, Rego Park, N.Y. (Rashel M. Mehlman and Michael H.Reich of counsel), for respondent.
In an action to recover a down payment pursuant to a contract for the purchase of realproperty, the defendant Dave Sheldon, also known as David Sheldon, appeals from (1) an orderof the Supreme Court, Queens County (Hart, J.), dated January 7, 2009, which, in effect, deniedhis motion to vacate a prior order dated September 19, 2007, inter alia, granting the plaintiff'scross motion for summary judgment in lieu of complaint pursuant to CPLR 3213, upon hisdefault in opposing the cross motion, and to vacate a prior order dated October 25, 2007,granting the plaintiff leave to enter a money judgment, (2) an order of the same court enteredFebruary 25, 2009, which denied an application to sign an order to show cause, (3) an order ofthe same court dated February 4, 2009, which directed him and nonparty Darren K. Kearns toappear before the court on a subsequent date, and (4) a judgment of the same court enteredOctober 15, 2009, which is in favor of the plaintiff and against him in the principal sum of$50,000.
Ordered that the appeals from the orders are dismissed; and it is further,
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, themotion of the defendant Dave Sheldon, also known as David Sheldon, to vacate the orders datedSeptember 19, 2007, and October 25, 2007, is granted, that defendant's moving papers aredeemed to be his answer, the order dated January 7, 2009, is modified accordingly, and thematter is remitted to the Supreme Court, Queens County, before a different Justice for all furtherproceedings in this action; and it is further,
Ordered that one bill of costs is awarded to the appellant.
The appeal from the order dated January 7, 2009, must be dismissed because the right ofdirect appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are broughtup for review and [*2]have been considered on the appeal fromthe judgment (see CPLR 5501 [a] [1]).
The appeal from the order entered February 25, 2009, must be dismissed on the ground thatno appeal lies from an order denying an application to sign an order to show cause (seeCPLR 5701).
The appeal from the order dated February 4, 2009, must be dismissed, as no appeal lies as ofright from an order which does not determine a motion made on notice (see CPLR 5701[a] [2]), and we decline to grant leave to appeal in view of the fact that a final judgment has beenentered.
CPLR 5015 (a) (1) permits a court to vacate a default where the moving party demonstratesboth a reasonable excuse for the default and the existence of a potentially meritorious cause ofaction or defense (see Orwell Bldg.Corp. v Bessaha, 5 AD3d 573 [2004]; Scarlett v McCarthy, 2 AD3d 623 [2003]; Westchester Med.Ctr. v Clarendon Ins. Co., 304 AD2d 753 [2003]). The determination of what constitutes areasonable excuse is left to the sound discretion of the court (see Scarlett v McCarthy, 2 AD3d 623 [2003]; WestchesterMed. Ctr. v Clarendon Ins. Co., 304 AD2d 753 [2003]; Holt Constr. Corp. v J & RMusic World, 294 AD2d 540 [2002]). Further, public policy favors a determination ofcontroversies on their merits (seeScarlett v McCarthy, 2 AD3d 623 [2003]; Eastern Resource Serv. v MountbattenSur. Co., 289 AD2d 283, 284 [2001]). Here, the Supreme Court improvidently exercised itsdiscretion in holding that the defendant Dave Sheldon, also known as David Sheldon, failed tooffer a reasonable excuse for his default. Sheldon established that the plaintiff's cross motion forsummary judgment in lieu of complaint was untimely and did not afford him an opportunity torespond (see D'Aniello v T.E.H. Slopes, 301 AD2d 556 [2003]; Perez v Perez,131 AD2d 451 [1987]). Furthermore, Sheldon established a potentially meritorious defense byproffering evidence that the plaintiff failed to comply with the mortgage contingency clause setforth in the subject contract for the purchase of real property (see e.g. Sbordone vClouse, 207 AD2d 337 [1994]).
The parties' remaining contentions either need not be reached in light of our determination orare without merit. Santucci, J.P., Dickerson, Chambers and Sgroi, JJ., concur.
Motion by the respondent, inter alia, to dismiss appeals from three orders of the SupremeCourt, Queens County, dated January 7, 2009, and February 4, 2009, and entered February 25,2009, respectively, on the ground that the orders are not appealable. By decision and order onmotion of this Court, dated September 21, 2009, that branch of the motion which was to dismissthe appeals was held in abeyance and was referred to the panel of Justices hearing the appeals fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, [*3]and upon the argument of the appeals, it is
Ordered that the branch of the motion which was to dismiss the appeals is denied asacademic in light of our determination of the appeals. Santucci, J.P., Dickerson, Chambers andSgroi, JJ., concur.