Romero v. 437 Prospect Assoc., LTD. , 2021 NY Slip Op 03391 ( 2021 )

Romero v 437 Prospect Assoc., LTD. (2021 NY Slip Op 03391)

Romero v 437 Prospect Assoc., LTD.

2021 NY Slip Op 03391

Decided on May 27, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 27, 2021
Before: Gische, J.P., Kern, Oing, Shulman, JJ.

Index No. 25366/14 43034/15 Appeal No. 13952N Case No. 2020-02124

[*1]Luis Omar Romero, Plaintiff-Respondent,

v

437 Prospect Associates, LTD., Defendant, KNS Building Restoration, Inc., Defendant-Appellant. [And Third-Party Actions]

Kaufman Dolowich & Voluck, LLP, Woodbury (Roland A. Vitanza of counsel), for appellant.

Raymond Schwartzberg & Associates, PLLC, New York (Steven I. Brizel of counsel), for respondent.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered October 17, 2019, which granted plaintiff's motion to vacate an order of dismissal entered upon his default, unanimously affirmed, without costs.

The dismissal order having been entered upon plaintiff's default in opposing defendant KNS Building Restoration, Inc.'s motion, plaintiff's remedy was to move to vacate the order (Figiel v Met Food, 48 AD3d 330 [1st Dept 2008]).

Plaintiff demonstrated a reasonable excuse for his default, i.e., law office failure (CPLR 5015[a][1]; see Government Empls. Ins. Co. v Avenue C Med., P.C., 166 AD3d 857, 859 [2d Dept 2018]). The record reflects miscommunication between outgoing and incoming counsel and a delay in the transfer of plaintiff's file. KNS does not contest the motion court's finding that plaintiff demonstrated a meritorious cause of action(see On Assignment v Medasorb Tech., LLC, 50 AD3d 342 [1st Dept 2008]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 27, 2021