| Toll Bros., Inc. v Dorsch |
| 2012 NY Slip Op 00359 [91 AD3d 755] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Toll Brothers, Inc., Respondent, v Richard Dorsch,Appellant. |
—[*1] Peter B. Ackerman, White Plains, N.Y., for respondent.
In an action to recover damages, inter alia, for breach of contract, the defendant appeals (1)from an order of the Supreme Court, Orange County (Slobod, J.), dated January 19, 2011, whichgranted the plaintiff's unopposed motion for leave to enter a judgment against him in theprincipal sum of $18,099.31, upon his failure to appear or answer, and (2), as limited by his brief,from so much of an order of the same court dated May 18, 2011, as, in effect, denied that branchof his motion which was pursuant to CPLR 5015 (a) (1) to vacate the order dated January 19,2011.
Ordered that the appeal from the order dated January 19, 2011, is dismissed, as no appeal liesfrom an order entered upon the default of the appealing party (see CPLR 5511; Development Strategies Co., LLC, ProfitSharing Plan v Astoria Equities, Inc., 71 AD3d 628 [2010]); and it is further,
Ordered that the order dated May 18, 2011, is reversed insofar as appealed from, on the factsand in the exercise of discretion, and that branch of the defendant's motion which was pursuant toCPLR 5015 (a) (1) to vacate the order dated January 19, 2011, is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant.
"A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrateboth a reasonable excuse for the default and a potentially meritorious defense to the action" (Clover M. Barrett, P.C. v Gordon, 90AD3d 973, 973 [2d Dept 2011]; seeDevelopment Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d628 [2010]). "Other factors which the court should consider include whether the defaultprejudiced the opposing party, whether it was willful or evinced an intent to abandon thelitigation, and whether vacating the default would serve the strong public policy of resolvingcases on their merits when possible" (Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150,1150-1151 [2011]; see U.S. Bank, N.A.v Dick, 67 AD3d 900, 902 [2009]; Moore v Day, 55 AD3d 803, 804 [2008]).
Here, the defendant established both a reasonable excuse for the default, and the [*2]existence of a potentially meritorious defense to the action. Further,there was no showing by the plaintiff that it was prejudiced by the default or that the default waswillful, and public policy favors the resolution of cases on their merits (see Dimitriadis vVisiting Nurse Serv. of N.Y., 84 AD3d at 1151; Moore v Day, 55 AD3d at 805; Li Gang Ma v Hong Guang Hu, 54AD3d 312, 313 [2008]; Ahmad vAniolowiski, 28 AD3d 692, 693 [2006]). Accordingly, under the circumstances of thiscase, the Supreme Court improvidently exercised its discretion in denying that branch of thedefendant's motion which was pursuant to CPLR 5015 (a) (1) to vacate his default.
In light of our determination, we need not reach the defendant's remaining contention.Skelos, J.P., Dickerson, Hall, Roman and Cohen, JJ., concur.