Opinion
2014-02-14
In the Matter of John REILLY, Petitioner–Appellant, v. CITY OF ROME, Rome Police Department, and James Masucci, Commissioner of Public Safety, Respondents–Respondents.
Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, J.), entered June 13, 2012 in a proceeding pursuant to CPLR article 78. The order granted respondents' motion to vacate a default judgment. Felt Evans, LLP, Clinton (Jay G. Williams, III, of Counsel), for Petitioner–Appellant. Cohen & Cohen LLP, Utica (Richard A. Cohen of Counsel), for Respondents–Respondents.
Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, J.), entered June 13, 2012 in a proceeding pursuant to CPLR article 78. The order granted respondents' motion to vacate a default judgment.
Felt Evans, LLP, Clinton (Jay G. Williams, III, of Counsel), for Petitioner–Appellant. Cohen & Cohen LLP, Utica (Richard A. Cohen of Counsel), for Respondents–Respondents.
MEMORANDUM:
In this proceeding pursuant to CPLR article 78, petitioner appeals from an order granting respondents' motion to vacate a default judgment. We note at the outset that, although no appeal as of right lies from an intermediate order in a CPLR article 78 proceeding ( see CPLR 5701[b] [1] ), we treat the notice of appeal as an application for leave to appeal from the order and grant the application ( see Matter of Conde v. Aiello, 204 A.D.2d 1029, 1029, 613 N.Y.S.2d 94). It is well settled that the decision whether to vacate a default judgment is a matter within Supreme Court's discretion ( see Alliance Prop. Mgt. & Dev. v. Andrews Ave. Equities, 70 N.Y.2d 831, 832–833, 523 N.Y.S.2d 441, 517 N.E.2d 1327). Here, given that respondents proffered a reasonable excuse for failing to serve a timely answer to the petition and demonstrated a meritorious defense ( seeCPLR 5015[a] [1]; Puchner v. Nastke, 91 A.D.3d 1261, 1261–1262, 936 N.Y.S.2d 792), and considering the “strong public policy in favor of resolving cases on the merits” ( Moore v. Day, 55 A.D.3d 803, 804, 866 N.Y.S.2d 303;see Puchner, 91 A.D.3d at 1262, 936 N.Y.S.2d 792), we conclude that the court did not abuse its discretion in granting respondents' motion ( see Cavagnaro v. Frontier Cent. Sch. Dist., 17 A.D.3d 1099, 1099, 794 N.Y.S.2d 252). We note that, prior to the default, respondents engaged in settlement discussions with petitioner and filed a motion to dismiss the petition, thus evidencing a “good faith intent to defend” the proceeding on the merits ( Coven v. Trust Co. of N.J., 225 A.D.2d 576, 576, 639 N.Y.S.2d 95), and we further note that petitioner was not prejudiced by the slight delay in answering the petition ( see Accetta v. Simmons, 108 A.D.3d 1096, 1097, 969 N.Y.S.2d 339).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ., concur.