| State of New York v Bayramov |
| 2012 NY Slip Op 06042 [98 AD3d 811] |
| August 23, 2012 |
| Appellate Division, Third Department |
| State of New York, Respondent, v Dimiter M. Bayramov,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen W. Demuth of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (McNamara, J.), entered September 1,2011 in Albany County, which denied defendant's motion to renew.
Plaintiff commenced this action in March 1996 to collect allegedly unpaid tuition for the1992-1993 school year at the State University of New York at Stony Brook. After joinder ofissue, the parties exchanged correspondence and, in 1997, defendant supplied plaintiff withregistration documents purportedly showing that he had enrolled in and paid for a singleone-credit course rather than the 10 unpaid credits that plaintiff alleged. Plaintiff did not respond.Thereafter, for reasons unexplained, the action lay fallow for 11 years.
In 2005, defendant relocated to Florida. In November 2008, plaintiff moved for summaryjudgment and sent notice of the motion via first class mail to defendant's former New Yorkaddress. After it was returned as undeliverable, notice was then sent by first class mail todefendant's Florida residence. Defendant failed to oppose this motion, and a default judgmentwas entered against him in April 2009 and served upon him in June 2010. Promptly thereafter, hemoved pro se to vacate the default judgment, alleging that he had not been served with plaintiff'smotion. Supreme Court denied the motion, finding that defendant was properly served when themotion papers were mailed to his New York address of record and that he had not established areasonable excuse for the default or put forth facts constituting a meritorious [*2]defense. In May 2011, following discovery of his previouslymislaid 1993 registration papers, defendant moved to renew. Supreme Court denied the motion,and defendant appeals.
We reverse, finding that defendant met his burden to present "new facts not offered on theprior motion that would change the prior determination" (CPLR 2221 [e] [2]; see Webber v Scarano-Osika, 94 AD3d1304, 1305 [2012]). We find that defendant did so by submitting new evidence bothestablishing a meritorious defense and demonstrating a reasonable excuse for his default.Therefore, the motion for renewal should have been granted (see M & R Ginsburg, LLC v Orange Canyon Dev. Co., LLC, 84 AD3d1470, 1472 [2011]).
Having made this determination, we examine the underlying motion to vacate the defaultjudgment. This Court has inherent power to excuse defaults in the interest of justice (see Kostun v Gower, 61 AD3d1307, 1307 [2009]; Wade v Villageof Whitehall, 46 AD3d 1302, 1303-1304 [2007]). The quantum of proof required toestablish a reasonable excuse for a default is less stringent than that required on a motion forsummary judgment (see Dodge vCommander, 18 AD3d 943, 945 [2005]), and resolving cases on their merits is stronglypreferred (see Abel v Estate ofCollins, 73 AD3d 1423, 1425 [2010]; Frank v Martuge, 285 AD2d 938, 939[2001]). Defendant has proffered documentation supporting his claim that he is not liable on theunderlying debt, and has affirmatively asserted that he did not receive the summary judgmentmotion "in New York, Florida, or anywhere else" before he was served with the defaultjudgment. Plaintiff offered no evidence contradicting this claim. "[L]ost or misplaced mail canserve as a reasonable excuse for a pleading delay" (Chase Manhattan Automotive Fin. Corp. vAllstate Ins. Co., 272 AD2d 772, 774 [2000] [internal quotation marks and citationomitted]). Plaintiff has shown no prejudice resulting from defendant's failure to respond to itsmotion, particularly in light of its own inexplicable delay of more than 12 years in moving forsummary judgment. In light of all the circumstances, we grant the motion for renewal, vacate thedefault judgment and remit the matter to Supreme Court for a disposition upon the merits (seeWhitbeck v Erin's Isle, 109 AD2d 1032, 1034 [1985]).
Peters, P.J., Lahtinen, Spain and Malone Jr., JJ., concur. Ordered that the order is reversed,on the law, with costs, motion to renew granted and, upon renewal, default judgment vacated,and matter remitted to the Supreme Court for further proceedings not inconsistent with thisCourt's decision.