Opinion
Argued September 7, 2001.
October 1, 2001.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of (1) an order of the Supreme Court, Suffolk County (Gerard, J.), dated May 27, 1999, as, upon its default in appearing for a hearing, granted the respondents' motion to dismiss the complaint insofar as asserted against them, and (2) an order of the same court, entered July 20, 2000, as denied its motion, inter alia, to vacate the default.
Certilman Balin Adler Hyman, LLP, East Meadow, N.Y. (Thomas J. McNamara, Joseph N. Campolo, and Natalya Rivkin of counsel), for appellant.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, BARRY A. COZIER, JJ.
ORDERED that the appeal from the order dated May 27, 1999, is dismissed, as no appeal lies from an order made upon the default of the appealing party (see, CPLR 5511); and it is further,
ORDERED that the order entered July 20, 2000, is reversed insofar as appealed from, on the law and as a matter of discretion, the motion to vacate the default is granted, the order dated May 27, 1999, is vacated, and the complaint is reinstated; and it is further,
ORDERED that the appellant is awarded one bill of costs.
In light of the plaintiff's meritorious claim in this mortgage foreclosure action, and its contention that the default in appearing for a hearing was due to a single, isolated instance of law office failure, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion to vacate its default (see, Levy Williams Constr. Corp. v. United States Fire Ins. Co., 280 A.D.2d 650, 651; see also, Parker v. City of New York, 272 A.D.2d 310).
ALTMAN, J.P., KRAUSMAN, FLORIO and COZIER, JJ., concur.