Opinion
7273N Index 101710/16, 590192/13, 590331/10
10-09-2018
PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Plaintiff–Respondent, v. GUARDIAN SERVICE INDUSTRIES, INC., Defendant–Appellant. Guardian Services Industries, Inc., Third–Party Plaintiff–Appellant, v. Moretrench American, Third–Party Defendant–Appellant. Guardian Service Industries, Inc., Second Third–Party Plaintiff–Appellant, v. Nicholson/E.E. Cruz, LLC, Second Third–Party Defendant–Respondent. Moretrench American, Corporation, Third Third–Party Plaintiff–Appellant, v. Phoenix Constructors, et al., Third Third–Party Defendants–Respondents.
Bonner Kiernan Trebach & Crociata LLP, New York (Jae W. Joo of counsel), for Guardian Service Industries, Inc., appellant. Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C., New York (Stacy I. Malinow of counsel, New York), for Moretrench American, Corporation, appellant. Gerber Ciano Kelly Brady LLP, Garden City (Matthew V. Bruno of counsel), for respondents.
Bonner Kiernan Trebach & Crociata LLP, New York (Jae W. Joo of counsel), for Guardian Service Industries, Inc., appellant.
Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C., New York (Stacy I. Malinow of counsel, New York), for Moretrench American, Corporation, appellant.
Gerber Ciano Kelly Brady LLP, Garden City (Matthew V. Bruno of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Mazzarelli, Webber, Singh, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 17, 2017, which granted plaintiff and second third-party defendant's (Nicholson) motion to vacate their default, unanimously affirmed, without costs.
The motion court providently exercised its discretion in determining that plaintiff and Nicholson demonstrated a reasonable excuse for their default and, respectively, a meritorious cause of action and a meritorious defense (see Benson Park Assoc., LLC v. Herman , 73 A.D.3d 464, 899 N.Y.S.2d 614 [1st Dept. 2010] ). The court concluded that the attorney representing plaintiff and Nicholson suffered from various problems including health issues and that his clients should not be prejudiced by his conduct. The court found that the merit of plaintiff's claim and Nicholson's defense of contractual and common law indemnification was demonstrated by the contracts and the testimony of witnesses that water on the job site may have been a proximate cause of the underlying accident.
We have considered appellants' remaining arguments and find them unavailing.